Renner & Renner
[2023] FedCFamC2F 1499
•14 November 2023 (oral reasons) 21 November 2023 (written reasons)
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Renner & Renner [2023] FedCFamC2F 1499
File number(s): CAC 2077 of 2022 Judgment of: JUDGE W J NEVILLE Date of judgment: 14 November 2023 (oral reasons)
21 November 2023 (written reasons)Catchwords: FAMILY LAW – Costs – consideration of principle regarding award of indemnity costs – Court determined that while a costs Order should be made in the Applicant Mother’s favour the amount sought by her was either or both, in accordance with authority, an unreasonable amount, and/or unreasonably incurred especially having regard to the 11 personnel involved in an Application for costs and the duplication in charging by later-involved lawyers who “read themselves into the matter” while the principal lawyer was still involved. Legislation: Family Law Act 1975 (Cth) s.117(1), 117(2A) Cases cited: Bouras v Grandelis (2005) 65 NSWLR 314
Candlewood Navigation Corporation Ltd v Mitsui OSK Lines Ltd [1985] 1 AC 1
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59
Penfold v Penfold (1980) 144 CLR 311
Stephens v Stephens (2011) 44 Fam LR 117
Division: Division 2 Family Law Number of paragraphs: 48 Date of last submission/s: 12 September 2023 Date of hearing: In chambers Solicitor for the Applicant: Farrar Gesini Dunn The Respondent: Making written submissions on his own behalf ORDERS
CAC 2077 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RENNER
Applicant
AND: MR RENNER
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
14 NOVEMBER 2023
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Respondent is to pay the costs of the Applicant fixed in the sum of $8,385.15 by no later than 4.00 pm on 13th January 2024.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
This matter concerns costs of family law litigation regarding a very discrete issue. For the reasons that follow, rather more is at stake.[1]
[1] The reasons that follow were initially delivered orally. They have been revised from the Transcript.
Above all else, whatever legal principle is involved in either parenting or property matters, family law should not be regarded, let alone treated, as effectively a licence to print money. Troublingly, in many respects, this is what family law litigation has become, where costs are excruciatingly, and in many respects, unjustifiably and alarmingly high, as well as completely disproportionate to the issues before the Court. Moreover, the legal costs are often, if not usually, crushing for the families involved, on one or both sides. And comparatively, especially with other forms of litigation discussed briefly later in these reasons, family law costs are regularly, if not almost invariably, ever so much higher. In part, this is because of either or both (a) a form of over-servicing, and (b) lawyers who have been admitted for only a couple (or a small number) of years, have charge-out rates that far exceed those of immeasurably more experienced and more highly qualified lawyers in commercial matters. Relevant details are provided below.
It was agreed to by the parties that the discrete issue of costs could be dealt with “on the papers.” The written submission of the parties are set out below.
For the reasons that follow, there should be an Order for costs in the Mother’s favour but in an amount that is approximately one-third of the concerningly, and disproportionately, large sum sought on her behalf.
Applicant’s Orders Sought
The Applicant’s original Orders sought were contained in her Application, filed 21st June 2023. Those Orders Sought were:
1.That within 14 days of the date of the Orders, the Respondent pay to the Applicant the sum of $14,329.62, for the following:
1.1The Respondent's legal costs between the period 26 July 2022 to 1 June 2023 on an indemnity basis fixed at the sum of $12,111;
1.2The Respondent’s costs of the Applicant in a Proceeding fixed at $2,093.62 in accordance with Item 3 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 scale; and
1.3Filing fee for this Application in a Proceeding of $125.
The Mother filed an Amended Application in a Proceeding on 12th September 2023, which sought the following Orders (emphasis in original):
1.That within 14 days of the date of these Orders, the Respondent pay to the Applicant the sum of
$14,329.62$26,287.80, for the following:1.1.The Respondent's legal costs between the period 26 July 2022 to 1 June 2023 on an indemnity basis fixed at the sum of
$12,111$10,754.70;1.2.The Respondent's costs of this Application in a Proceeding on an indemnity basis fixed at the sum of $15,533.10.
at $2,093.62 in accordance with Item 3 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 scale; and1.3.
Filing fee for this Application in a Proceeding of $125AND IT IS NOTED THAT AN AMENDED SCHEDULE OF COSTS IS ANNEXED, ALONG WITH A CALCULATION OF COSTS ON SCALE
The amended schedule of costs referred to, entitled ‘Ledger of Costs on an Indemnity Basis’, was annexed to this Amended Application. It was as follows (emphasis in original, footnotes omitted):
Entry Date Description Billed By Hours* Rate/Hr Total (ex tax) 4/11/2022 2:35 PM Reading email from you and drafting email in response Lawyer 0.3 530.00 $159.00 8/11/2022 10:43 AM Reading email from you and responding RE Mr Renner commencing proceedings Lawyer 0.1 530.00 $53.00 8/11/2022 3:32 PM Briefly reading court documents Lawyer 0.2 $530.00 $106.00 8/11/2022 3:33 PM Reading emails from you and responding Lawyer 0.1 $530.00 $53.00 10/11/2022 2:15 PM Reading Mr Renner's Court documents Lawyer 0.4 $530.00 $212.00 10/11/2022 3:03 PM Considering legal issues RE parenting proceedings, discussing strategy with Directors, conducting legal research in relation to summary dismissals, drafting letter to other party [in excess of but say 2 hours] DISCOUNTED Lawyer 2.0 $530.00 $1,060.00 11/11/2022 10:53 AM Email to you RE parenting proceedings Lawyer 0.3 $530.00 $159.00 11/11/2022 11:44 AM Telephone from you Lawyer 0.1 $530.00 $53.00 11/11/2022 1:57 PM Meeting with you to discuss next steps and certify court documents Lawyer 0.3 $530.00 $159.00 11/11/2022 1:58 PM Urgent email to Mr Renner enclosing letter Lawyer 0.1 $530.00 $53.00 11/11/2022 4:30 PM Collating the other party's sealed court documents provided by you Paralegal 0.1 $170.00 $17.00 11/11/2022 4:53 PM Settling draft letter to our client with strategy Director 0.1 $760.00 $76.00 11/11/2022 4:53 PM Settling draft letter to OP seeking resolution Director 0.1 $760.00 $76.00 15/11/2022 1:17 PM Call to the other party regarding our correspondence in relation to collection of the passports; File note to Lawyer regarding same Paralegal 0.1 $170.00 $17.00 15/11/2022 4:19 PM Strategy meeting with directors RE preparing for Court tomorrow Lawyer 0.1 $530.00 $53.00 15/11/2022 7:08 PM Email to other party chasing response Lawyer 0.1 $530.00 $53.00 15/11/2022 7:31 PM Reading email from you and responding Lawyer 0.1 $530.00 $53.00 16/11/2022 8:16 AM Drafting NOAFS, filing & serving; email to registry requesting urgent access to court file; email to you for your records Paralegal 0.3 $170.00 $51.00 16/11/2022 12:41 PM Email to you informing you of passport collection Paralegal 0.1 $170.00 $17.00 16/11/2022 4:57 PM Preparing for Court Lawyer 0.7 $530.00 $371.00 16/11/2022 4:57 PM Attendance at Court with you [9:45 - 10:30] Lawyer 0.8 $530.00 $424.00 16/11/2022 5:00 PM Reading email from other party RE courier collection Lawyer 0.1 $530.00 $53.00 17/11/2022 3:08 PM Reading email from the Court enclosing Orders Lawyer 0.1 $530.00 $53.00 18/11/2022 2:04 PM Letter to family court requesting adjournment Lawyer 0.2 $490.00 $98.00 28/11/2022 12:56 PM Settling letter to Court requesting adjournment Lawyer 0.1 $530.00 $53.00 28/11/2022 4:46 PM Email to you forwarding letter to the Court seeking an adjournment for the mention in March 2023 Paralegal 0.1 $170.00 $17.00 30/11/2022 5:23 PM Reading email from the Court RE new listing Lawyer 0.1 $530.00 $53.00 30/11/2022 11:16 PM Forward email to you from court with orders Lawyer 0.1 $490.00 $49.00 13/12/2022 2:05 PM Telephone from you Lawyer 0.2 $530.00 $106.00 13/12/2022 2:05 PM Reading email from you to other party RE COVID Lawyer 0.1 $530.00 $53.00 20/12/2022 5:03 PM Reading emails from you and providing emails of advice in response Lawyer 0.5 $530.00 $265.00 30/01/2023 2:40 PM Reading email from you and providing advice in response Lawyer 0.4 $530.00 $212.00 31/01/2023 11:52 AM Reading email from other party and forward to you Lawyer 0.1 $530.00 $53.00 31/01/2023 4:46 PM Meeting with you Lawyer 1.5 $530.00 $795.00 6/02/2023 3:54 PM Drafting letter to other party Lawyer 0.7 $530.00 $371.00 9/02/2023 9:00 AM Email to you forwarding draft letter for approval Paralegal 0.1 $170.00 $17.00 9/02/2023 9:55 AM Settling draft letter to other party Director 0.3 $760.00 $228.00 16/02/2023 3:02 PM Reading emails from you Lawyer 0.2 $530.00 $106.00 23/02/2023 9:00 AM Email to you forwarding letter from other party's solicitor Paralegal 0.1 $170.00 $17.00 23/02/2023 10:18 AM Telephone to you [23 mins] Lawyer 0.4 $530.00 $212.00 1/03/2023 6:51 PM Reading email from you including your notes on parenting matters Lawyer 0.4 $530.00 $212.00 1/03/2023 6:52 PM Considering legal issues and strategy for response to Mr Renner’s lawyer Lawyer 0.4 $530.00 $212.00 1/03/2023 6:52 PM Drafting letter to other party's solicitor in relation to parenting matters Lawyer 0.5 $530.00 $265.00 2/03/2023 8:38 AM Reading email from you approving letter Lawyer 0.1 $530.00 $53.00 2/03/2023 9:32 AM Meeting with Director of Family Law RE Strategy in your case Lawyer 0.1 $530.00 $53.00 2/03/2023 10:05 AM Settling draft letter to other party's solicitor Director 0.2 $760.00 $152.00 2/03/2023 12:53 PM Email to you Lawyer 0.1 $530.00 $53.00 20/03/2023 11:16 AM Drafting joint letter seeking to adjourn FCFCOA Lawyer 0.3 $530.00 $159.00 23/05/2023 4:04 PM Making enquiries for mediation availability Paralegal 0.1 $170.00 $17.00 23/05/2023 7:43 PM Drafting letter to you RE next steps for FVO matter and Family Law Matter Lawyer 1.4 $530.00 $742.00 23/05/2023 7:44 PM Drafting letter to other party's solicitor Lawyer 0.4 $530.00 $212.00 23/05/2023 7:44 PM Reading email from mediator Lawyer 0.1 $530.00 $53.00 24/05/2023 10:12 AM Settling draft letter to you and letter to other party's solicitor Director 0.3 $760.00 $228.00 24/05/2023 11:05 AM Generating court documents for further population Paralegal 0.4 $170.00 $68.00 24/05/2023 1:37 PM Telephone to you Lawyer 0.3 $530.00 $159.00 24/05/2023 1:38 PM Reading email from you Lawyer 0.1 $530.00 $53.00 31/05/2023 11:00 AM Meeting with Lawyer re strategy Director 0.2 $760.00 $152.00 31/05/2023 2:07 PM Preparing for Court Lawyer 0.8 $530.00 $424.00 31/05/2023 2:15 PM Telephone to you Lawyer 0.2 $530.00 $106.00 31/05/2023 6:37 PM Meeting with Director to discuss strategy RE costs application Lawyer 0.2 $530.00 $106.00 1/06/2023 11:36 AM Meeting with director to discuss strategy Lawyer 0.1 $530.00 $53.00 Subtotal for work prior to Costs Application (excluding GST) $9,777.00 Subtotal for work prior to Costs Application (including GST) $10,754.70 8/06/2023 4:02 PM Review your file and populate excel spreadsheet for costs to differentiate costs in relation to your family law matter Lawyer 0.7 $530.00 $371.00 14/06/2023 9:00 AM Email to Mr Renner with correspondence and attachements, forward to you Paralegal 0.2 $170.00 $34.00 14/06/2023 1:49 PM Review letter and strategy [Family Law] Lawyer 0.3 $760.00 $228.00 14/06/2023 2:35 PM Settling letters RE costs [Family Law] Lawyer 0.5 $530.00 $265.00 14/06/2023 2:36 PM Telephone to you RE next steps [Family Law] Lawyer 0.2 $530.00 $106.00 14/06/2023 3:44 PM Drafting application in proceeding and supporting affidavit [Family Law] Lawyer 2.3 $530.00 $1,219.00 19/06/2023 9:35AM Settle affidavit [Family Law] Lawyer 0.3 $530.00 $159.00 20/06/2023 11:39 AM Amend and update affidavit and application in a proceeding in relation to costs application [Family Law] Lawyer 2.2 $530.00 $1,166.00 20/06/2023 2:28 PM Review and comments on affidavit [family law] Lawyer 0.5 $530.00 $265.00 20/06/2023 5:52 PM Finalise affidavit [family law] Lawyer 1.6 $530.00 $848.00 20/06/2023 7:44 PM Email to you in relation to outstanding annexures; compiling annexures for your affidavit in relation to costs application [Family Law] Lawyer 1.5 $530.00 $795.00 21/06/2023 9:58 AM 3 telephone calls to you in relation to affidavit for application in a proceeding [Family Law] Lawyer 0.3 $530.00 $159.00 21/06/2023 1:00 PM Conference with team to allocate tasks for your affidavit, final review [Family Law] Lawyer 0.4 $530.00 $212.00 21/06/2023 1:30 PM Peruse text messages from you in relation to affidavit and text messages to you in response [Family Law] Lawyer 0.2 $530.00 $106.00 21/06/2023 2:28 PM Amending affidavit and application in a proceeding according to your instructions in your email dated 21.06.23 and finalising all relevant court documents and annexures [Family Law] Lawyer 0.8 $530.00 $424.00 21/06/2023 3:16 PM Meeting with you to sign your affidavit and application in a proceeding in relation to costs; filing court documents on portal; serving other party [Family Law] Lawyer 0.9 $530.00 $477.00 21/06/2023 5:11 PM Final review of Application, Affidavit and settle email to other party [Family Law] Lawyer 0.5 $530.00 $265.00 21/06/2023 5:12 PM Affidavit of paralegal [Family Law] Lawyer 0.2 $530.00 $106.00 22/06/2023 8:36 AM Check portal for Court date and sealed application [Family Law] Lawyer 0.1 $530.00 $53.00 12/07/2023 2:53 PM Reading email from you and responding [Family Law] Lawyer 0.1 $600.00 $60.00 12/07/2023 2:54 PM Reading email from you to Mr Renner RE passports [Family Law] Lawyer 0.1 $600.00 $60.00 20/07/2023 3:25 PM Meeting with you to discuss family law issues [Family Law] Lawyer 0.2 $600.00 $120.00 31/07/2023 10:04 AM Reading email from you and responding RE service of documents [Family Law] Lawyer 0.1 $600.00 $60.00 4/08/2023 9:00 AM Letters to parties and process server Paralegal 0.5 $170.00 $85.00 4/08/2023 10:21 AM File review (1 unit but say no charge) Lawyer 0.0 $570.00 $0.00 7/08/2023 9:00 AM Email to process server re instructions and documents Paralegal 0.1 $170.00 $17.00 8/08/2023 9:00 AM Email to process server re updated instructions Paralegal 0.2 $170.00 $34.00 15/08/2023 9:00 AM Emails to process server and to you confirming service Paralegal 0.2 $170.00 $34.00 21/08/2023 9:00 AM Email to process server to follow up Affidavit of Service Paralegal 0.1 $170.00 $17.00 21/08/2023 2:36 PM Review Comcourts records, process server correspondence and email to you Lawyer 0.3 $600.00 $180.00 28/08/2023 8:43 AM Letter to other party re passport register (FCFCOA) Lawyer 0.7 $600.00 $420.00 28/08/2023 11:42 AM Reading response and affidavit filed by other party (FCFCOA matter) Lawyer 0.7 $600.00 $420.00 28/08/2023 2:08 PM Research and drafting submissions on father's further application that the passports be held with the Court (FCFCOA rules) Lawyer 0.7 $600.00 $420.00 28/08/2023 2:45 PM Reading emails from you re passport register (FCFCOA matter) Lawyer 0.3 $600.00 $180.00 29/08/2023 8:49 AM Settling draft letter to other party Director 0.1 $810.00 $81.00 29/08/2023 11:28 AM Costs Notice Lawyer 0.1 $600.00 $60.00 29/08/2023 11:28 AM Attendance at directions hearing 10am - 11:00am (FCFCOA matter) Lawyer 1.0 $600.00 $600.00 29/08/2023 5:34 PM Drafting Submissions of the Applicant Mother re costs of substantive proceedings (FCFCOA) Lawyer 1.6 $600.00 $960.00 1/09/2023 9:00 AM Email to you forwarding Orders Paralegal 0.1 $170.00 $17.00 5/09/2023 12:37 PM Drafting Financial Statement 5.9.23 Lawyer 0.3 $600.00 $180.00 5/09/2023 3:40 PM Reading financial statement of the Father Lawyer 0.1 $600.00 $60.00 5/09/2023 4:07 PM Email to you Paralegal 0.1 $170.00 $17.00 5/09/2023 4:09 PM Meeting with you to sign your financial statement (FCFCOA) Lawyer 0.2 $570.00 $114.00 8/09/2023 3:40 PM Drafting submissions of the Applicant Mother re Order 2 of the Orders sought by the Respondent Father in his Application in a Proceeding (FCFCOA) Lawyer 1.0 $600.00 $600.00 8/09/2023 3:47 PM Finalise submissions (FCFCOA) Lawyer 0.8 $600.00 $480.00 8/09/2023 3:57 PM Drafting Amended Application in a Proceeding CAC2077 Lawyer 0.2 $600.00 $120.00 11/09/2023 8:59 AM Prepare costs ledger for costs application in FCFCOA (no charge) Lawyer 0.0 $570.00 $0.00 11/09/2023 10:02 AM Settling draft submissions Director 0.3 $810 $243 11/09/2023 10:16 AM Review of submissions and further amendments Lawyer 0.5 $600 $300 11/09/2023 12:06 PM Email to you with a clean copy of the submissions as draft for your review Paralegal 0.2 $170 $34 11/09/2023 12:14 PM Creating a tender bundle Paralegal 0.2 $170 $34 11/09/2023 1:35 PM Updating Amended Application in a Proceeding Lawyer 0.2 $600 $120 11/09/2023 1:37 PM Further review of calculations (no charge) Lawyer 0 $600 0.00 11/09/2023 3:12 PM Drafting Annexure A – Costs Calculations Lawyer 0.9 $600 $540 11/09/2023 3:22 PM Filing tender bundle Paralegal 0.2 $170 $34 11/09/2023 3:27 PM Settling draft Amended Application Director 0.2 $810 $162 Subtotal for work in relation to Costs Application (excluding GST) $14,121.00 Subtotal for work in relation to Costs Application (including GST) $15,533.10
Total for substantive proceedings and costs proceedings Total excluding GST $23,898.00 Total including GST $26,287.80
The ‘Ledger of Costs on Division 2 Scale’ was annexed to the Mother’s Amended Application in a Proceeding and is outlined as follows (emphasis in original):
Item Costs Item 2: Initiating or opposing an application that includes interim orders (other than procedural orders) up to the completion of the first court date - Work up to the completion of interim hearing on 16 November 2022 $3,141.50 Item 13(b): Daily hearing fee for 16 August 2023 (half day hearing) $1,255.75 Item 3: Initiating or opposing an application for interlocutory orders (including an interim hearing) that is not otherwise described in item 1 or 2 - Application in a Proceeding re Costs $2,093.62 Item 13(a): Short mention on 29 August 2023 $342.19 Item 15: Drafting, conferences and chamber work (not otherwise covered by other items in the table):
Financial Statement of Mother and reading Father's Financial Statement: 0.6 hours
Further work in relation to Father's application that passports remain at the registry including research on rules, letter to Father prior to hearing: 2.4 hours
Submissions: 2.4 hours
Amended Application in a Proceeding: 0.2 hours
Total: 5.6 hours x $277.16 per hour$1,552.09 Total $8,385.15 Respondent’s Orders Sought
The Respondent’s Orders sought were outlined in his Response to an Application in a Proceeding filed on 25th August 2023 as follows (emphasis in original):
1.The Costs Application is dismissed.
2.The children’s passports are to remain with the Court Registry […] and be made available to either party upon written notice to the other.
Written submissions on behalf of the Applicant
Written submissions were filed on behalf of the Applicant Mother on 12th September 2023 and are outlined as follows (emphasis in original, footnotes omitted):
Background
1.This is an Application in a Proceeding for costs, pursuant to Rule 10.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (FCFCOA Rules) and filed within 28 days of the Father discontinuing his Application for interim and final parenting Orders. The Father's Initiating Application filed on 3 November 2022 was discontinued on 22 May 2023, but that Notice of Discontinuance was not served, and as at the date of these submissions, has never been served. Orders were made by [the] Judicial Registrar […], in chambers, for the Father's Application to be dismissed on 24 May 2023 following his Notice of Discontinuance being filed, but without prior notice to the Mother nor her solicitors.
2.The Orders sought by the Applicant Father in the discontinued proceedings sought to discharge final parenting Orders made by consent on 25 June 2020 (the 2020 Orders), and replace them with new Orders which were substantially the same as the 2020 Orders, with two key differences being:
2.1That instead of the Mother holding the children's passports, that the Father hold the children's passports (see Order 7 of Initiating Application filed 3 November 2022 "Initiating Application"); and
2.2That the Father have "primary parental responsibility for the children" whereas the 2020 Orders provide for equal shared parental responsibility (see Order 1 of Initiating Application).
Submissions in relation to Costs
3.Whilst the general principle is that each party bears their own costs, this is a matter where the Mother submits the Court should deviate from that principle pursuant to section 117(2) of the Family Law Act 1975 (Cth).
The factors in section 117 which are relevant to these proceedings are:
4.Section 117(2A)(c) and (d) – the conduct of the parties and failure to comply with previous orders of the Court: The Initiating Application filed by the Father was wholly unnecessary. The 2020 Orders provide for the Mother to hold the passports. The Mother made it very clear that she was prepared to provide the Father with the children's passports, which pursuant to Order 26(a) of the 2020 Orders, was "the last changeover prior to international travel". This would have been [late] 2022 (see paragraph 18 of the Mother's affidavit). His demand the passports be provided to him earlier was contrary to the 2020 Orders. Prior to the hearing on 16 November 2022, the Father was invited to collect the passports at an earlier time from the Mother's solicitors' office, notwithstanding that it was earlier than was required by the 2020 Orders (see paragraph 23 of Mother's affidavit and Affidavit of [Ms J]). He elected not to do so.
5.Section 117(2A)(e) and (f) – whether any party has been wholly unsuccessful, and any offers made: Orders were not made altering the 2020 Orders as sought by the Father. Effectively the Orders made on 16 November 2022 were in accordance with what was proposed by the Mother by way of correspondence on 11 November 2022. The Father was wholly unsuccessful in his interim application, which was for the Mother to post the passports to him and that "upon the father's receipt of the children's passports he will become the custodian" (Order 3 of interim orders sought in his Initiating Application). Notably the Father gives evidence that the 2020 Orders had to be amended because his lawyers at [B Lawyers] considered them problematic. The 2020 Orders were drafted whilst he was represented by [B Lawyers] and the Mother by [C Lawyers]. There is no evidence that those Orders are improperly drafted nor defective. Indeed the Father discontinued the Initiating Application and the 2020 Orders remain in full force and effect. No additional variations are now proposed save for that the Court retain custody of the children's passports. This application is contrary to the rules and is dealt with below.
6.Section 117(2A)(a) – the financial circumstances of the parties: The Mother submits that the Father has the capacity to pay the costs ordered, and that her financial circumstances are far inferior to the Father's. According to his Financial Statement, the Father has assets, exclusive of superannuation, of over $1 million. The Mother has assets, exclusive of superannuation of approximately $300,000. The Father earns $4,720.30 per week gross. The Mother earns $2,032 per week gross. The Mother has borrowed $15,000 from her Mother to pay legal costs in relation to these proceedings and family violence proceedings commenced by the Father (see Mother's Financial Statement).
7.It is acknowledged that indemnity costs are only granted in exceptional circumstances. The principles in Colgate-Palmolive Co v Cussons Pty Ltd, as noted by Neville J in Manuel & Pinner (No 3) [2022] FedCFamC2F 1235 at [228] is regularly cited authority for relevant principles regarding the awarding of indemnity costs. Justice Sheppard in Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536 at [5], sets out examples where indemnity costs might be warranted:
I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes; evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson; Maitland Hospital v Fisher (No 2); Crisp v Kent) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). [citations of cases listed omitted, underlines added]
8.These proceedings were commenced as a consequence of the Father's refusal to comply with existing final Orders. He refused to accept the children's passports from the Mother at the last changeover before his international travel, and from the Mother's solicitors at an earlier time when invited to do so. The Court might infer from his final Orders sought that his motive was his wish to control the children's passports and agitate for sole parental responsibility, notwithstanding these issues having been dealt with in the 2020 Orders. Even now, after discontinuing his proceedings to vary the final Orders, he reagitates and prolongs this matter by seeking Orders in relation to the passports. This is a matter which falls squarely within several examples of where there is an exceptional circumstance which would warrant an Order for indemnity costs, both in relation to the substantive proceedings and this Application in a Proceeding for costs.
Submissions in relation to Order 2of the Father’s Response to an Application in a Proceeding
9.The Father seeks as Order 2 of his Response in an Application in a Proceeding dated 25 August 2023 (Response), that "The children's passports are to remain with the Court Registrar […] and be made available to either party upon written notice to the other." The Mother seeks that Order of the Response be dismissed and that the Father pay the Mother's costs to respond to that Order on an indemnity basis.
10.The passports are no longer held with the Court, and the Court has indicated to the Mother via the Passport Register that the passports are "not be returned as per Orders 25/6/20 on CAC 2318/2018 (order 25)". The Father is on notice of this fact, as the Court's Passport Register was served upon him on 29 August 2023. Notwithstanding that, he presses his application.
11.There is no substantive Initiating Application on foot in relation to parenting Orders, as the Father's previous Initiating Application has been dismissed. Orders in relation to passports cannot be sought by way of a Response to an Application in a Proceeding, where the only application in foot is in relation to costs.
The FCFCOA Rules deals with specific restraints on interlocutory applications:
12.Rule 5.02(2) states: "A person may apply for an interlocutory order only if the order sought relates to a current proceeding, unless the person is seeking: (a) permission to start a proceeding or extend a time limit to start a proceeding; or (b) to be appointed as a litigation guardian for a person under rule 3.15; or (c) an order for costs."
13.Rule 2.01 states: "(3) A person must not file an application for an interlocutory order unless: (a) an application for final orders is current in the proceeding; or (b) the application includes an application for final orders."
14.Table 2.1 at Item 1(h) includes that an application seeking final orders, for example an "order relating to a passport", is to be filed by way of an Initiating Application (Family Law).
15.If the Father wishes to relitigate the issue of who holds the children's passports, the process for doing so is by filing a fresh Initiating Application and satisfy the Court as to the test in Rice and Asplund. However, prior to that occurring, he will need to comply with the pre-action procedures. On the basis that there is no jurisdiction to hear Order 2 of the Response without substantive parenting proceedings on foot, the Mother seeks that the following paragraphs of the Father's affidavit filed on 25 August 2023 (uploaded to Comcourts on 28 August 2023) be struck out or not read, as those paragraphs appear to relate to Order 2 of his Response, or are not relevant to these costs proceedings: paragraphs 24-29, the second sentence in paragraph 48, paragraphs 49‑67 of the Affidavit of [Mr Renner] filed on 25 August 2023.
16.If the above paragraphs are read, or the Court determines that it will hear the Father's application regarding the children's passports, as a matter of procedural fairness to the Mother, she will need the opportunity to file an affidavit in reply prior to any determination being made. The Mother contends that the allegations contained in the above paragraphs are irrelevant, misleading and/or inadmissible.
17.Given the Father's non-compliance with the Rules and attempt to reopen proceedings he has just discontinued, the Mother seeks that this Application in a Proceeding regarding costs also be paid on an indemnity basis. Her Application in a Proceeding has been amended accordingly and filed at the same time as these submissions. The writer who has temporary carriage of this file, has identified overlaps with costs claimed in the FVO proceedings, and has corrected the amount sought accordingly. If the Court is not minded to order costs on an indemnity basis in a fixed amount, rather than the extra time and expense of taxing the Mother's costs, the Mother proposes in the alternative that costs be fixed at two-thirds of the total costs, or in the alternative in accordance to the scale. The Father was put on notice via letter on 29 August 2023 (see Tender Bundle) that if he persisted in further Orders regarding passports, further costs would be added to the Mother's application.
18.A ledger and schedule of costs calculated at two-thirds of indemnity costs and on scale is annexed to the Mother's Amended Application in a Proceeding.
Written submissions on behalf of the Respondent
The self-represented Respondent Father filed an Affidavit which sought to cover both factual matters and “submissions”, albeit in a somewhat irregular form as set out below:
1.I am the Applicant in the substantive proceedings CAC2077/2022 and the Respondent to an Application in a Proceeding in relation to costs pertaining to the same matter. This is my third Affidavit in this matter, and in addition to this Response, I rely upon my previous affidavits.
2.The Initiating Application was brought about when (on 28 October 2022) in contravention of Order 26 (c) of Consent Orders, I was refused access to the children’s passports. Upon being refused access, I provided [Ms Renner] written notice of intent (that day) and on 3 November 2022 filed an Application.
3.At 5.30pm on 7 November 2022, [Ms Renner] and I received an email from Chambers advising the details of the mention/possible hearing. Later that day, [Ms Renner] emailed me saying I was “incorrect” in my “interpretation of the Orders” and asking I provide “evidence” I “needed the passports for the issues of visas” and foreshadowing a costs application.
4.On 11 November 2022 I received a letter from Daniel Magnussen of Farrer Gesini Dunn (“FGD”) confirming he represented [Ms Renner] and accusing me of misinterpreting the Orders, “circumventing the pre-action procedures,” filing an Application that is “vexatious, frivolous and an abuse of process” and putting me “on notice” of a costs application.
5.For context, I wish to include that the achievement of Orders by Consent was unnecessarily protracted, because despite signing Heads of Agreement (after costly mediations that went well into the evening) on two occasions; [Ms Renner] reinstigated the contested proceedings shortly before the Hearing; which ultimately didn’t go ahead because [Ms Renner] (as the Applicant) failed to submit her documents by the Court deadline. The Final Orders and settlement were on the same terms as the first Heads of Agreement and in preparing this response I discovered we may have been successful in a costs Application for the $156,000 we spent in legal fees. We were essentially forced to spend more than triple the legal costs disclosed by [Ms Renner] because of her conduct.
6.This pattern of using the Court process to threaten, harass, intimidate and coerce us is well established, so I again felt intimidated by the inflammatory correspondence from a third law firm in as many years; and confused at the simultaneous messages I was not entitled to the passports (suggesting I was in breach of the Orders by having them) but at the same time demanding I collect them; or be sued for costs.
7.The matter was heard on 16 November 2022, with an Order issued by the Court saying that “Until further Order” I be provided the passports; and making the sensible suggestion they be kept at the Registry upon our return from overseas, and made available to either party on written notice to the other.
8.On 11 January 2023 I emailed [Ms Renner] advising her I would be lodging the passports with the Registry, and seeking her consent for the children to travel to [Country D] during my care period [late] 2023 to [early] 2024. I did not receive a reply within the required 7 days, which is a breach of Order 26 of the Consent Orders, instead, on 20 January 2023, I received an email from [Ms Renner], saying she was “seeking legal advice;” which I took to be an act of intimidation designed to cast doubt over my ability to take the children overseas to meet friends and family and celebrate [a family event]. This was accompanied by the children’s disturbing report that “Mummy said she would be at the same place at the same time as us when we are in [Country D]”.
9.At 11.22pm on 29 January 2023 I received an email from [Ms Renner] saying “Lodgement of the children’s passports with the Court Registry has not been discussed or agreed. This suggestion was made by Judge Neville in Note B, however no Orders was made”. And directing me to “ensure the children’s passports are not lodged at the Court Registry, and they are returned IAW Consent Orders, para 25 no later than 3pm on Friday 03 Feb 23”.
10.On 31 January I lodged the passports with the Court Registry and forwarded the lodgement receipt and [Ms Renner’s] email of 29 January 2023 to [Mr F]. At 10.12pm that evening I received an email from [Ms Renner] providing her consent to the children travelling to [Country D], as requested three weeks prior.
11.Upon written notice to [Ms Renner] [in early] 2023, I retrieved the passport from the Registry to take the children on a [holiday]. In April these passports were renewed and lodged with the Registry on 25 May 2023.
12.At the same time I withdrew my Application in this matter (and the Magistrate’s Court matter) matter due to the ill health of my wife, who is undergoing a series of procedures following complications from [medical] treatment. The use of the Magistrate’s Court process to seek my wife’s entire medical record, coupled with the children reporting an escalation in physical and psychological violence during [Ms Renner’s] care periods left me feeling the only option as to withdraw from both processes.
13.Over the course of June and July 2023 I received a series of emails from [Ms Renner] accusing me of being in breach of the Consent Orders because I hadn’t provided her the new passports; and stating that as I had “withdrawn my Application, the Orders from Judge Neville no longer applies”.
14.In July, [Ms Renner] withdrew the passports from Registry without providing me prior notice. I am not aware of any international travel plans [Ms Renner] may have planned for the children.
15.In August, I received correspondence from FGD stating that the passports will be provided at “last changeover prior to travel” and “not before,” meaning I will not have access to the passports until [late] 2023, which is the day of departure. This ostensibly creates the same situation that brought us before the Court last year.
16.Notwithstanding I again need to attend to entry requirements, [Ms Renner’s] conduct since I lodged the Initiating Application casts doubt over the (already booked) trip going ahead at all. The Court will be closed [in late] 2023, leaving me with no recourse if the passports are not produced, this use of the Orders to inflict uncertainty and angst is now a familiar pattern I feel powerless to overcome. I would like to seek a change in custodianship of the passports but we are simply not able to cope with the stress of continued litigation that (on the basis of [Ms Renner’s] conduct to date) would likely not be resolved without a contested Hearing; and would worsen my wife’s health and be detrimental to the wellbeing of the children. A change in custodianship of the passports would however minimise opportunities for conflict and alleviate the unnecessary anxiety associated with ‘gatekeeping’ the passports.
17.To date, my wife [Ms E] and I have incurred more than $30,000 in legal costs associated with this matter and the FVO and PPO; paid from our savings. All of the matters were instigated as a result of [Ms Renner’s] conduct. Further, I am concerned there are substantial anomalies in [Ms Renner’s] financial disclosure, detailed in the attached table. In summary, it appears there may have been a significant underreporting of [Ms Renner’s] annual income/benefits by $122,000 per annum; and of cash assets by $69,000. My income for last FY whilst correct, is an anomaly resulting from a capital gain associated with the disposal of an investment property in preparation for my involuntary medical separation from [my employer].
18.[Ms Renner] was provided a reasonable offer on 22 February 2023 to settle this matter with amendments (by consent) to the current Orders, putting an end to the proceedings. The offer explicitly acknowledged the cost of the proceedings to [Ms Renner] and outlined a compromise that would alleviate the need for litigation so those funds could be applied by [Ms Renner] “for the benefit of the children” and offering pragmatic changes to the existing Orders. [Ms Renner] refused the offer without explanation or reasonable offers of compromise.
19.Mediation was delayed at [Ms Renner’s] request and when I filed the Discontinuance Application on 25 May 2023 [Ms Renner] had still not filed her response material, nor provided any indication of changes foreshadowed in a letter from FGD saying [Ms Renner] “also has proposals for ways to amend the current orders.” This contradicts [Ms Renner’s] argument that she should be awarded costs because my Application was “unnecessary.” Further, I am concerned [Ms Renner] is claiming the same costs in both matters. The quantum of costs claimed does not correlate with the outputs we received; which are limited to a few pieces of correspondence and brief appearances.
20.I made an Application to the Court in good faith and did so because I felt I had no other option. Unfortunately, the process has served only to provide a vehicle for what I believe is systems abuse. [Ms Renner] has (and continues) to ignore the authority of the Court, to use the Orders to exercise coercive control and create conflict where none need exist and has failed to comply with the Rules or act in good faith by meeting deadlines and/or taking genuine steps to resolve the matter for the benefit of the children.
Outline of principle
Section 117(2A) of the Family Law Act 1975 (Cth), which is a departure from the standard Order in s.117(1) whereby each party pays her or his own costs, is in the following terms:
(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, discover, 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 the 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.
The statutory and jurisprudential considerations in relation to the making (or not making) Orders for costs are well known. Although well known, it is nonetheless important (especially with the Father being self-represented) and sufficient, to note the following from the Full Court decision in Stephens v Stephens.[2] Beginning at [62], the Full Court said (emphasis added):
[2] Stephens v Stephens (2011) 44 Fam LR 117.
[62] Section 117(1) of the Act provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
[63] Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
[64] Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130 [41]:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. 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.
[65] As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
[66] As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[67] We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
In the same case, the Full Court commented summarily on the award of indemnity costs, relevantly at [73]:
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
The decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (noted by the Full Court in Stephens) is a regularly cited authority for relevant principle regarding the awarding of indemnity costs.[3] In that judgment, his Honour outlined the following principles, which I set out in full (emphasis added):[4]
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-
1. The problem arises in adversary litigation, i.e. litigation as between parties at arm's length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority.
2. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of Order 62, rules 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal)and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
[3] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
[4] See 46 FCR at 232-234.
Consideration & disposition
To speak somewhat generally, what seemingly began as a contest over accessibility to passports for the children of the parties, has since turned into a remarkable and obviously unfortunate contest over costs. It should be stated at the outset that there is little, if anything, the Court can definitively say or find in relation to the highly confined contested facts because the matter was, by consent (as noted above), determined “on the papers.” Moreover, the Court itself has had very little involvement in the matter, and such as there was, took place under the watchful eye of another Judge of this Court at an earlier point in time. Until the present Application, my formal involvement was for a very short time, in November 2022.
It is, regrettably, very often the case in family law litigation that when parties are at their most volatile and/or most vulnerable (or both, and all contours in between) their contest drains them not only emotionally and psychologically but also financially, as earlier noted. And as the smallest procedural nod to highlight the alarming costs of family law litigation, there is now a requirement to provide so-called “costs” notices prior to any hearing. It seems to have made not a jot of difference to the amounts charged. It is important to note in this regard that the Mother’s lawyers have provided a highly detailed breakdown of costs – literally to the minute (set out above).
The Mother claims that the Father’s Application regarding access to the children’s passports was unnecessary (a) because there are existing Orders in place, and (b) she had indicated to him that she would make the passports available, thereby obviating the need to bring any application. The substance of these contentions are accurate and appropriate as statements of fact.
For his part, (using my words) the Father says that he has regularly had to fight the Mother to get ready, or sufficiently early, access to the passports. Twelve months ago, the Court suggested that the passports be held, in the future, at the Registry of the Court in the hope that this might alleviate the prospect of further contest. This notation was made to the Orders of November 2022 but obviously no Order – yet! Desirably, but without holding my breath, one might think that an Order by consent should be able to be made. The cost – in every sense of that occurring – could be another hurdle for the parties.
The immediate matter for consideration is an Amended Application for costs, filed by the Mother on 12th September 2023. By that Application, summarised, she seeks indemnity costs against the Father in relation to an Application he filed on 3rd November 2022 in relation to what he describes as a contravention of Order 26(c) of the Consent Orders made by Judge Hughes on 25th June 2020. That Application regarding access to the children’s passports was heard by me on 16th November 2022 and ultimately resolved, with Orders issuing on that date.
Clearly, according to the Affidavits of the parties filed in relation to the issue of “costs”, quite significant and ongoing contest continued for many months. The Father’s November 2022 Application was withdrawn/discontinued on 22nd May 2023. Contests between the parties regarding access to passports seems to have continued rather unabated, with the Father lodging or depositing the children’s passports with the Registry, and the Mother contending that she had not (on various occasions) been relevantly notified of this course, and further contending that doing so was contrary to the June 2020 Consent Orders. Yet further contests followed, with each accusing the other of not complying with Orders regarding the passport Orders from 2020, among other things.
There were, and possibly still are, separate proceedings in the Magistrates Court between the parties.
As I noted at the hearing in November 2022, it was completely unclear why the Court was involved, especially since there appeared to have been basic compliance with the Consent Orders of 2020 regarding access to passports, albeit regularly with some tension amidst time constraints – perceived or actual. It was because of that obvious tension, a not uncommon feature of passport matters where one parent holds those documents rather than them being held (for example) at a neutral location, such as the Registry of the Court, that this course was recommended or suggested to the parties at the hearing last November. Yet here we are, one year later, with the parties still fighting. And it would seem that (a) the Court’s firm suggestion regarding the use of the Registry as the repository for these hotly contested documents has plainly fallen on barren ground, and (b) there remains some contest between the parties over access to them – hence the constant involvement of lawyers, albeit mainly on one side.
Legally, there are basically three matters to consider to quell the latest controversy between the parties: (a) whether there is a sufficient factual basis for the Mother’s Application; (b) whether that factual basis is sufficient to satisfy the matters set out in s.117(2A) FLA regarding an award of costs, as well as having regard to legal principle drawn from authority regarding indemnity costs; and (c) if the Court finds the earlier matters relevantly satisfied, what should be the quantum of costs in the Mother’s favour.
In my view, on any perspective of the circumstances, the filing by the Father of his Application to seek a variation of the final parenting Orders was, at least, premature and ill-considered. What is perhaps more to the point is that he did not discontinue his Application much sooner, especially after the Mother had notified him that she would make the passports available, which she notified to the Father on 28th October 2022. The correspondence is Annexure MSR-3 to the Mother’s Affidavit filed 21st June 2023. Accordingly, in my view, there is plainly a factual basis for an award of costs. This said, in my view, the time-frame for compliance with the “passport” Orders is needlessly or unnecessarily narrow and obviously continues to give rise to contest between the parties.
I move to issue (b) above.
The statutory outline in s.117(2A) requires consideration of, among other things, the financial circumstances of the parties, failure to comply with previous Orders, the outcome of the proceedings, and other relevant matters. The parties have each filed a Financial Statement.
Again, somewhat summarily, and as already noted, the discontinuance of the proceeding by the Father plainly confirms that they were ill-conceived. As such, they led to the Mother needlessly incurring costs. As noted by the authorities recorded in Stephens, including by the High Court in Penfold, one factor alone is sufficient for an award of costs.[5] Put another way, there are justifying circumstances here to warrant an award of costs. This leads then to the final consideration, namely the quantum of that award, which necessitates a consideration of the factors set out by Sheppard J in Colgate-Palmolive, which was noted by the Full Court in Stephens.
[5] Penfold v Penfold (1980) 144 CLR 311.
The following matters require consideration in relation to quantum: (a) the nature and detail of the Application in question; (b) the number of lawyers and other personnel involved on behalf of the Mother; and (c) some evaluative and comparative considerations (analogous to a “taxation”).
The Application: It has already been noted that the current Amended Application of the Mother relates only to costs. The first Application, filed 21st June 2023 (set out above), sought significantly less costs. The second, and Amended Application, filed 12th September 2023 (also set out above), sought significantly higher costs; almost double the original amount sought. Why such an experienced firm would not, as it were, “get it right” the first time regarding the Orders sought, was not explained.
As an issue, a child’s passport is almost invariably a discrete matter. As such, comparatively, it is something of a lower Order matter notwithstanding that the children in question cannot travel overseas with either parent without their passports. As such, it is an issue of some moment. It is not, however, a matter of life and death, or a constitutional issue, or similar matter. These brief comparisons are obviously somewhat relative but still important if for no other reason than to provide some perspective, which is not always on display in family law litigation.
Personnel: Here, some comparisons are of use, again at least for perspective, among other things. The helpful and revealing Costs Schedule annexed to the Mother’s Amended Application records that 11 persons, lawyers and para-legals (and similar), have been involved in the matter solely relating to costs. At first blush, so to speak, this is a remarkable number. At somewhat closer analysis, there have been a number of instances recorded where various lawyers have come into the matter at later stages. Any lawyer so engaged cannot, and should not, be charging their time to the client simply because someone else essentially has to “get up to speed” in relation to matters for which the client has already been charged the first time round by the lawyer who then had carriage of the matter. Otherwise, this is a basic instance of double charging. Any such charges would not be allowed on a taxation. To the degree necessary here, I will have no regard to them here. They are patently unjust and should never have been charged.
Working backwards from the Ledger itself, in addition to the total costs claimed of $26,287.80 (including GST), on its final page there are some incidental items relating to scale costs, in a manner of speaking, which total $8,385.15. Of this sum there is a curiously worded item in the following terms: “Drafting, conferences and chamber work (not otherwise covered by other items in the table).” This totals $1552.09. This is calculated by 5.6 hours at an hourly rate of $277.16. There is no information regarding who actually did any of this drafting, who attended such conferences, or who did the referred to “chamber work.” How this can be charged in this way, with no details regarding personnel, and how it was not covered by any of the previously itemised 11 lawyers and para-legals is a complete mystery. In my view, absent any of the basic detail referred to, it is quite unconscionable to charge this amount in this way, over and above the itemised entries set out in the ledger. How and why this is not an exercise in usurious practice, among other things, must be considered to be a concerning issue and may warrant examination by the Law Society. I will come back to other items of concern in the Costs Ledger.
I note again that the Mother’s Application only concerned the issue of costs. Those costs related generally to a discrete issue of the children’s passports. Yet 11 personnel from the Mother’s lawyers were involved and charged her for their time. Again, on its face, a reasonable argument can be made that there has been a significant exercise of over-servicing, which in turn has led to the prodigious account for such a discrete issue.
For comparative purposes, and similar comments that can be readily taken from the daily menu, if not feast, of matters before the Court, I note the following (with some apology for the personal details described)..
When in practice myself (a year or two ago), among other matters, I ran one of the last Privy Council appeals: for legal aficionados, the Judicial Committee comprised Lord Fraser (his last appeal) Lords Roskill and Brandon (respectfully, acknowledged admiralty & maritime heavyweights indeed), Lord Templeman and Lord Griffiths – his Lordship’s first time on the Judicial Committee. The case involved a collision between super-tankers, which by definition involved multi-millions of dollars in damages both in repairs to the tankers and in economic loss under the various charter-parties (one a bareboat charter, the other a time charter) that were involved. There was a significant difference of opinion at the time on a number of questions of law including in relation to economic loss, between the House of Lords (as it then was) and the High Court of Australia. Apart from a Mr AM Gleeson QC, and his junior, together with one solicitor from the required London agents, I had, and retained, the sole carriage of this matter for the five-day trial at first instance in the NSW Supreme Court, and for the 3 days of the appeal before the Privy Council and all preparations for both trial and appeal (in the latter, acting for the Respondent). For this multi-million dollar, and multinational, matter (multiple witnesses from Korea, Taiwan and Japan were involved, plus local experts) there were not 11 personnel involved: only the four lawyers and my then secretary (for whom, certainly in those days) there was no charge at all.[6]
[6] See Candlewood Navigation Corporation Ltd v Mitsui OSK Lines Ltd [1985] 1 AC 1.
The same general comment applies to the various High Court matters I conducted. The so‑called “team” for those matters of high principle (legal and political) was invariably very small and tight. At most, in one matter, there were 5 lawyers involved; in the other, only 4. For those who have run any matter in the High Court, it would be well known that the paperwork alone is immense, and which requires, above all else, the closest attention to fine detail of fact and principle under pain of very public and excruciating chastisement by the Court. Put another way, there were not 11 personnel in any matter before the highest Court in the land. This is to say that, at times, one can understand that a “team”, proportionate to the size, complexity and gravity of the matter may be useful, indeed perhaps necessary. For a relatively modest amount of costs, regarding a very discrete matter that involved no issue of principle, the need for (and charges for) a “team” must surely be questioned. A large team in such circumstances here must also be considered to be at least a remarkable, if not an unjustifiable, extravagance. In my view, such extravagance ought not be visited or imposed upon either the client or the other party, and certainly not without proper, justifiable reason.
The above is a first observation regarding the sadly, exponentially remarkable, number of personnel that some firms employ in family law litigation. In my view, such alarming if not depressing numbers are a cause (or should be) of embarrassment. The fact that it would seem that they are not, is likely because so many have basically become accustomed to charging such exorbitant fees. Certainly, among the larger family law firms, there seems to be not the slightest blink at charging sums in the hundreds of thousands of dollars. Sadly, it seems to have become akin to a justification that “this is the cost of doing business.” The cost of running a legal practice in family law is little different from running a legal practice in other areas of the law but which do not charge at such almost extortionate rates.
I pause here to note that long-standing authority records that the only grounds upon which items that go to make up a claim for indemnity costs are disallowed are if they are considered to be either (a) an unreasonable amount, and/or (b) unreasonably incurred.[7]
[7] See here the comments by Megarry V-C in EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59 at 63 and 71. The Vice-Chancellor’s comments were endorsed by the Court of Appeal of New South Wales in Bouras v Grandelis (2005) 65 NSWLR 314 at [96] and [118] (Santow JA; Giles and Basten JJA concurring). The comments of Megarry V-C recorded here were also noted and endorsed by Sheppard J in Colgate-Palmolive at 46 FCR at 234.
In the current circumstances, the comments of Sheppard J in Colgate-Palmolive regarding costs generally, and indemnity costs in particular, noted above, are a central point of reference here.
The second observation regarding personnel, already adverted to, relates to “charge out” rates. It is no criticism at all that most of those in the current matter acting for the Mother were admitted relatively recently, some within 2 years, others slightly longer. Their hourly charge rate is either $600 or $530 per hour. Para-legal staff seem to have been charged out around $170 per hour. The few times that any of the “directors” of the firm were involved, for example to settle a draft of a letter or submissions (regarding costs), their hourly rate was $810 or as noted in the Costs Schedule.
Sitting in the Court’s multiple other jurisdictions, notably in another “no costs” area such as under the Fair Work Act 2009 (Cth), there is ample evidence of the costs and hourly rates charged by lawyers there. Without undertaking a detailed study, and again for comparative purposes, I can note that one Counsel who appears regularly in this and other Courts in this jurisdiction, has practised overseas, has been admitted for more than 2 decades, is a university medallist and a graduate from Oxford University. This Counsel modestly charges $400 per hour (plus GST). Another Counsel, who was admitted to practice in 2012 and who appears regularly in this Court, in the Federal Court (at all levels) and in the High Court, according to his latest fee note, charges $350 plus GST. The fees charged by solicitors in these same matters are not too dissimilar from those of Counsel.
So, as rudimentary as it is, one can be admitted for approximately 2 years and have a charge‑out rate of $600 per hour in family law, compared to Counsel with 2 decades worth of experience, post-graduate qualifications from Oxford, and charge only $400 per hour in other, non-family law areas. Plus, even charging at $600 per hour, young lawyers at that rate still seek to have various documents “settled” by directors of the firm who charge at either $760 or $810 per hour. It somewhat begs the question: why would someone who charges at $600 per hour not have sufficient skills to draft and finalise documents themselves? The figures speak for themselves. To state what many others, from many different Courts, have said in the past, legal fees for litigation are crippling. In family law, this is clearly even more so the case. Those at their most vulnerable – in every respect – face financial ruin or at least immense financial hardship as a result of family law litigation.
Further still, the 11 personnel whose costs were charged to the Mother regarding the passport/costs matters, charged out 117 items! All over a spat (to speak somewhat colloquially, significant as it is) concerning passports and costs. As a general observation, in my view, on a “taxation”, somewhere between 45 and 50 items would be disallowed in part or in full. The disallowance would certainly apply to items described as “briefly reading file” (one either reads it properly or not at all), and circumstances where lawyers who come into the matter later, bring themselves up to speed, whereby the client is actually paying lawyers twice – first for the original lawyer who had carriage of the matter, then again when another lawyer becomes involved, but the first principal lawyer remains involved also.
There is one final observation. In the ancient world, especially in any discussion regarding the life of virtue, as part of that discussion there was invariably a consideration of those things that were considered to be either adverse or inimical to a virtuous life, and positively what assisted the development of it. I hasten to note immediately that I am not suggesting that anyone involved in this matter, or in most others, is not virtuous. My focus is elsewhere. For the ancients, such as Homer and Cicero (obviously different times and languages, the former Greek, the latter Roman and Latin) words and understandings of public and private propriety, a tender bashfulness if not even shame, although considered formally as negative, were considered to assist in the shaping of a virtuous life. Thus, for example, for the Greeks, to be called or described as aischyne would infer that someone was responsible for a shameful deed, or that someone was lacking in a certain modesty in conduct, perhaps even shamefully so. Greed and similar undertones were part of the panoply of words here. A simple, other example is the description of someone in the ancient world as having or being pleonektes/pleonexia connoted or indicated someone never being satisfied – with whatever was/is one’s focus.[8] Always wanting or needing more is the basic notion – sort of like the song in The Greatest Showman – “Never enough.” Conversely, what was to be encouraged was a certain modesty, respect, even reverence in one’s conduct (public and private), which were captured by the word aidos, and sophrosyne, each of which connoted one’s proper sense of esteem and prudential judgment.
[8] See the relevant entries in, for example, Liddell & Scott’s Intermediate Greek-English Lexicon (Oxford: Clarendon Press 1987).
Likewise for the Latins, such as Cicero, the wonderful word verecundia indicated the possession of diffidence, or careful, prudential modesty, not only in attire but also in one’s actions, which should always be prudent, otherwise, one would (or should) be ashamed or embarrassed by conduct (public or private) so described.[9]
[9] Also see the entry in C. Lewis, Lewis and Short – a Latin Dictionary (Oxford; Clarendon Press, 1879) at p. 1973.
So much for the very brief excursus into the ancient world of virtue and related matters.
For the reasons given, in my view, (a) the Father’s conduct in filing as he did was premature and imprudent; (b) in consequence, there should be an award of costs in the Mother’s favour; (c) there is significant duplication in the work charged to the Applicant Mother by her lawyers; (d) the number of personnel involved from that law firm was plainly excessive and the charges relating to those persons was/is likewise; and (e) in my view, the costs claimed by the Mother are, in the words of Megarry V-C in EMI Records, of an “unreasonable amount” and/or “unreasonably incurred”. In classical terms, they are “unseemly”. Having regard to the principles set out by Sheppard J in Colgate-Palmolive noted earlier, and having regard to all of the circumstances of the matter, the amount of costs that should be awarded, according to scale, are as set out on the last page of the Mother’s Amended Application, in the sum of $8,385.15. This sum is to be paid by the Father within 60 days.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 14 November 2023
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