Renald & Renald (Costs)
[2018] FamCAFC 4
•12 January 2018
FAMILY COURT OF AUSTRALIA
| RENALD & RENALD (COSTS) | [2018] FamCAFC 4 |
| FAMILY LAW – APPEAL – COSTS – Appellant seeks order for costs – Both parties have limited income but have assets – Order for costs would impose financial hardship on the respondent but the failure to make an order for costs in favour of the appellant would impose similar hardship on her – The respondent would have the capacity to meet the costs sought by the appellant – The appeal proceedings were not necessitated by a failure to comply with previous orders – Although the respondent was not wholly unsuccessful in the appeal, he had very limited success – “Conduct” under s 117(2A) of the Family Law Act 1975 (Cth) must be “in relation to the proceedings” – The respondent to pay the appellant’s costs to be assessed if not agreed. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) Collins and Collins (1985) FLC 91-603 |
| APPELLANT: | Ms Renald |
| RESPONDENT: | Mr Renald |
| FILE NUMBER: | PTW | 6955 | of | 2015 |
| APPEAL NUMBER: | WA | 12L | of | 2017 |
| DATE DELIVERED: | 12 January 2018 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | In chambers by way of written submissions |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 10 March 2017 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Dimond Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | O’Sullivan Davies |
Orders
The appellant have leave to rely upon the submissions filed 27 July 2017.
The Application in an Appeal filed 16 August 2017 be otherwise dismissed.
The Application in an Appeal filed 27 July 2017 be allowed.
The respondent pay the appellant’s costs of and incidental to the appeal, such costs to be assessed if not agreed.
The costs payable pursuant to Order (4) shall include the costs associated with the appellant’s application for costs.
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 Renald & Renald (Costs) 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 12L of 2017
File Number: PTW 6955 of 2015
| Ms Renald |
Appellant
And
| Mr Renald |
Respondent
REASONS FOR JUDGMENT
On 14 July 2017 I made orders allowing the mother’s appeal from orders made in the Magistrates Court of Western Australia on 10 March 2017 and I also re‑exercised the discretion of the Magistrate who dealt with the matter at first instance (Renald & Renald (No. 2) [2017] FamCAFC 133).
My orders directed the mother to file and serve submissions in support of any application for costs, or for the granting of costs certificates, within 14 days of the date of the order and also made provision for submissions in response.
On 27 July 2017 (within the time permitted) the mother filed her submissions seeking an order for costs fixed in the sum of $24,413. She also filed an Application in an Appeal in which she sought to rely upon two financial statements and her costs agreement with her solicitors.
On 14 August 2017 the father filed responding submissions in which he complained that the mother’s submissions were not served on his solicitors until 31 July 2017 (just outside the time prescribed).
On 16 August 2017 the mother filed an Application in an Appeal seeking a retrospective extension of the time to serve her submissions. In her affidavit in support she explained that the submissions had not been served in time as the Appeal Registry had not returned service copies of the documents.
Attached to the mother’s affidavit was a copy of an email dated 31 July 2017 from the mother’s solicitors to the father’s solicitors enclosing unsealed copies of all of the documents that had been filed with the costs submissions. The email advised that the documents had been filed on 27 July 2017.
The slight delay in the father’s solicitors receiving the costs submissions is inconsequential; it caused no prejudice to the father and has been adequately explained. I intend to permit the mother to rely upon her costs submissions.
The father did not take issue with the mother’s application to rely upon financial statements filed by the parties in February and March 2017. In fact, his own submissions purport to rely upon the parties’ more recent financial statements filed in the proceedings below. No formal application was made by the father to permit reliance on documents that are strictly not before me. Nevertheless, in accordance with the usual practice in dealing with costs disputes, I intend to treat both sets of (untested) financial statements and the mother’s costs agreement as being properly in evidence before me.
The legislation and relevant principles
Section 117(1) of the Family Law Act 1975 (Cth) provides that subject, inter alia, to s 117(2), each party shall bear their own costs. However, s 117(2) provides that the court may order costs to be paid if it considers there are circumstances that justify it in doing so. In considering what order (if any) should be made, the court must have regard to a variety of prescribed factors set out in s 117(2A). In disposing of the matter, I will refer only to those factors which the parties have identified in their submissions as being relevant.
In Collins and Collins (1985) FLC 91-603, the Full Court described the discretion conferred by s 117 as being a “broad” one, and held that the factors in s 117(2A) are not to be read in a restrictive way (at 79,877).
In Fitzgerald v Fish and Anor (2005) 33 Fam LR 123 at [41], the Full Court also made clear that any one of the factors in s 117(2A) may be the sole foundation for an order for costs. Nevertheless, as the Full Court had earlier said in I and I (No 2) (1995) FLC 92-625, the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs” (at 82,277).
Further, in Greedy and Greedy (1982) FLC 91-250 and Luadaka v Luadaka (1998) FLC 92-830, the Full Court made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters.
The financial circumstances of each of the parties to the proceedings
Both parties have a limited income. Both claim to be reliant upon family members to pay their legal fees. Between them, they have assets worth something less than $1 million, but as at the date of filing of the last submission, property issues between them were unresolved. There is no suggestion that either will be left without resources following a long marriage.
I accept that an order for costs would impose some financial hardship on the father, but equally the failure to make an order for costs in favour of the mother would impose similar hardship on her. I am satisfied that the father would have the capacity to meet the costs sought by the mother.
Whether the proceedings were necessitated by the failure of a party to comply with previous orders
The proceedings in the court below were necessitated by the failure of the father to comply with an order, but I am not persuaded that this is a factor relevant to the costs on the appeal. The “proceedings” referred to here are the appeal proceedings, not the first instance proceedings, and the appeal proceedings were strictly not necessitated by a failure to comply with an order.
Whether any party has been wholly unsuccessful in the proceedings
Strictly, the father was not wholly unsuccessful in the appeal. Although the appeal was allowed, on the re-exercise of the discretion, the order that I made requiring him to return the two children was subject to the wishes of the elder child. That proviso was the only “success” achieved by the father, and as I recorded at [80] of the substantive judgment, counsel for the mother conceded that it might be appropriate for only the younger child to be returned.
I also consider it relevant that had I been called upon to re-exercise the discretion on the facts as they stood at the time of the hearing before the Magistrate, the order for return would not have been made subject to the wishes of the elder child. In obtaining what little “success” he achieved, the father took advantage of the delay between the hearing before the Magistrate in March 2017 and the determination of the appeal in July 2017 in circumstances where the matter had in the meantime been listed for trial in August 2017.
Other relevant circumstances
Although it was conceded that the father’s conduct in retaining the two children after a visit was “reprehensible”, I am not satisfied that this is a relevant factor in determining the costs of the appeal. Specific provision is made in s 117(2A) for the court to consider issues of “conduct”, but the conduct must be “in relation to the proceedings” and is directed at conduct as a litigant. While I accept that a party’s conduct as a parent and their conduct as a litigant may be “intertwined” (Prantage v Prantage (2013) 49 Fam LR 197 at [104]), arguably this is more so the case in proceedings at first instance than appeal proceedings.
Conclusion
In considering all of the factors, I place most weight on the fact that the appeal was allowed and the only “success” achieved by the father was the inclusion of the proviso. I therefore intend to make an order for costs against the father. The making of such an order precludes granting cost certificates which were sought by both parties.
Fixing the quantum of costs
Wherever practicable, the Full Court now tries to fix the quantum of costs to avoid the additional cost and inconvenience for the parties and the Registrars associated with formal assessments of costs.
The amount sought is calculated in accordance with the Legal Profession (Family Court of Western Australia) Determination 2016 (WA) (“the Legal Profession Determination”). The mother also provided a calculation of costs “at scale” in accordance with the Family Law Rules 2004 (Cth), which roughly approximated the sum sought under the Legal Profession Determination.
The figure of $24,413 sought:
· included the cost of preparing the cost submissions;
· included the costs incurred in the proceedings at first instance; but
· did not include counsel fees notwithstanding that in the affidavit sworn in support of the Application in an Appeal, the mother said she had paid $5,500 to Senior Counsel for his services.
Although I consider the mother ought to have her costs of preparing the cost submissions, I am not prepared to order costs in relation to the proceedings at first instance. No order as to costs was made by the Magistrate, and the mother did not seek such an order in her Notice of Appeal. It is now not available to the mother to agitate the question of the costs of the first instance proceedings.
The mother’s schedule of costs requires amendment to take into account the matters noted above. The father ought to be given opportunity to comment on the amended schedule of costs. I find it impracticable to fix the costs and will order that they be assessed in the event they cannot be agreed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the draft reasons for judgment of Justice Thackray delivered on 12 January 2018.
Associate:
Date: 12/1/18
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