Redmond & Redmond (No 2)
[2023] FedCFamC1F 249
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Redmond & Redmond (No 2) [2023] FedCFamC1F 249
File number(s): SYC 1371 of 2020 Judgment of: SCHONELL J Date of judgment: 5 April 2023 Catchwords: FAMILY LAW – COSTS – Where both parties sought costs – Where the Independent Children’s Lawyer (“the ICL”) sought for the father to pay the ICL’s costs or then alternatively for both the mother and the father to pay the costs equally – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Applications for costs dismissed. Legislation: Family Law Act 1975 (Cth) ss 102NA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
Legal Aid ACT v Westwell (2021) FLC 94-013; [2021] FamCAFC 50
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4
Division: Division 1 First Instance Number of paragraphs: 27 Date of last submissions: 26 March 2023 Place: Sydney Counsel for the Applicant: Mr Flanigan Solicitor for the Applicant: Grant & Co The Respondent: Self-represented litigant Solicitor for the Independent Children's Lawyer: John Dawson & Associates ORDERS
SYC 1371 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS REDMOND
Applicant
AND: MR REDMOND
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
5 APRIL 2023
THE COURT ORDERS THAT:
1.The applicant mother’s and respondent father’s applications for costs are dismissed.
2.The Independent Children’s Lawyer’s oral application for costs 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 Redmond & Redmond has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 15 March 2023, the Court made orders by consent as between the Independent Children’s Lawyer (“the ICL”) and the mother in relation to various parenting matters. The father had by Notice of Discontinuance filed 1 February 2023 and subsequently at a mention before the Court on 3 February 2023 confirmed that he intended to take no further part in the proceedings, conscious in the knowledge that the Court would then proceed to deal with parenting matters in his absence.
Following the conclusion of the hearing on 15 March 2023, the ICL made an oral application for costs and the mother also made an application for costs. The Court directed that the mother file written submissions in support of her application for costs. Subsequently, on 20 March 2023, the ICL submitted a costs memorandum together with some short submissions. On 24 March 2023, the mother filed short written submissions. On 26 March 2023, the father submitted written submissions and after directions made by me, he subsequently filed an affidavit on 31 March 2023.
The ICL sought that the father pay a sum of $6,246.87 representing the father’s half share of the ICL’s costs and that the father also pay the mother’s half share of the ICL’s costs. The ICL submitted that in the event that the Court did not determine that the father should pay the mother’s share of the ICL’s costs, then the ICL sought that the mother and the father each pay 50 per cent of the ICL’s costs.
The mother opposed the order as sought by the ICL and sought an order that the father meet the mother’s costs on a party/party basis.
The father opposed both the ICL’s and the mother’s applications for costs, contending that the mother should meet her own costs and pay his costs.
An application for costs is governed by the provisions of s 117 the Family Law Act 1975 (Cth), which provides a general rule that each party to proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
In Penfold and Penfold (1980) 144 CLR 311, the plurality in the High Court determined that to make an order under s 117(2), the Court needs to make a finding of justifying circumstances as a preliminary prerequisite to the making of an order. Their Honours also observed that terms such as ‘an exceptional case’, ‘special circumstances’ or ‘a clear case’ are not necessary determiners of whether or not an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
It is well-settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
However, in the circumstances of a costs order sought by the ICL, s 117(3) and (4) have some application. They provide as follows:
117 Costs
…
(3) To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
Dealing now with the relative subsections in s 117(2A).
(a) The financial circumstances of each party to the proceedings
Neither the mother nor the father have filed a Financial Statement setting out what their current financial position is. The father has alluded in his written response as to some matters regarding the property of the parties arising out of their property settlement but there is little sworn evidence before me in relation to the financial position of either the father or the mother. I note, however, that both parties are in employment.
(b) Whether the parties are in receipt of legal aid
The mother has been provided with legal aid pursuant to s 102NA.
This, however, needs to be distinguished from a grant of aid. In Legal Aid ACT v Westwell (2021) FLC 94-013, the Full Court observed as follows:
40.We are therefore satisfied on balance, on a textual analysis of s 117, the reference to “legal aid” in s 117(4) does not include a reference to the provision of funding of a lawyer under s 102NA where that funding is from a legal aid body.
41.Further, it would be a bizarre outcome if a person who receives legal assistance by way of the provision of a lawyer under the Scheme brings with it an immunity against the costs of the Independent Children’s Lawyer to the alleged perpetrator of family violence, but the other party, the alleged victim, remains liable to pay them. Such an outcome is not consistent with the Act as a whole, with its many provisions dealing with family violence or s 102NA itself. The section, intended for the benefit of the witness party, would then be operating against them. Such an outcome would be intolerable.
42.We are thus of the view that the provision of legal assistance in the form of a lawyer to the mother for the purpose of cross-examination pursuant to the Scheme does not render her immune from an order that she pay the Independent Children’s Lawyer’s costs.
The mother is thus not immune from an order on that basis.
The father does not have a grant of aid nor assistance under s 102NA.
(c) The conduct of the parties to the proceedings
What is relevant is conduct of a party which in some way or other leads to an increase in costs by the other party. Such factors may include uncooperative behaviour, obstruction, prolonging litigation or the bringing of unreasonable or unmeritorious applications. It may include non-disclosure or a failure to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in relation to disclosure.
The mother contends that the father has failed to comply with orders for preparation of the matter for hearing. That is true but the father indicated that he did not intend to take part in the final hearing.
As it was, the matter proceeded to a final hearing but the remaining parties reached agreement on the first morning as between the mother and the ICL.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
It could not be said that the proceedings were necessitated by a failure to comply with a court order. That said, however, I am conscious that orders were made on 28 November 2022, which on the evidence it appears that the father has not complied with. That failure, however, did not necessitate the proceedings and does not explain why it was that the matter proceeded to a final hearing on 15 March 2023.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The term “wholly unsuccessful” refers to a situation in which proceedings as a whole have been unsuccessful, rather than necessarily an application (see Bant & Clayton (Costs) (2016) 56 Fam LR 31).
Neither party has been wholly unsuccessful.
(f) Whether any party has made an offer in writing
The terms of any offer of settlement have not been disclosed.
(g) Any other matter the Court considers relevant
There is no other matter that I consider relevant.
I am not satisfied that there are justifying circumstances to depart from the general rule that each party to the proceedings should bear their own costs.
It is undoubtedly the case that there is power to make an order for the costs of the ICL. I am not satisfied, however, in this matter that it is appropriate that such an order should be made. This is particularly in circumstances where when the matter was set down for hearing on 3 February 2023, the ICL indicated, notwithstanding that the father was not taking part in the proceedings and that the mother was the only moving party for orders, that he wished to cross-examine the mother. That was the reason why the matter ultimately proceeded to a final hearing. The matter could otherwise have been dealt with on that date on the basis of the mother’s then evidence. In those circumstances, therefore, I am not satisfied that there are justifying circumstances that warrant the orders sought by the ICL.
Accordingly, I propose to dismiss all parties’ applications for costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 5 April 2023
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