Rentoul v Poynton (No.2)
[2008] FMCAfam 295
•1 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RENTOUL & POYNTON (No.2) | [2008] FMCAfam 295 |
| FAMILY LAW – Costs – consideration of factors – costs in accordance with Schedule – Counsel’s fees not claimable as disbursement. |
| Family Law Act 1975 (Cth), ss. 60B, 60CC(2),(3),(4) &(4A), 117(2) & (2A) Federal Magistrates Court Rules, 2001 (Cth) rr.21.02(a), 21.15, 21.16 and Schedule 1 |
| ASR & BP [2007] FMCAfam 552 Barker v Barker & Wade (1976) 113 ALR 123 C & C (No 2) [2007] FMCAfam 54 Colan Products Pty Ltd v Luxton Pty Ltd & Anor (No 2) [2002] FMCA 90 Gaudry & Gaudry (No 2) [2004] FMCAfam 649 Genovese v BGC Construction Pty Ltd (No 2) [2007] FMCA 601 In the Marriage of Kohan (1992) 16 FamLR 245 In the Marriage of I & I (No 2) (1995) 22 FamLR 557 In the Marriage of WPJ Munday & MHJ Bowman (1997) 22 FamLR 321 In the Marriage of SH & P Brown (1998) 23 FamLR 349 In the Marriage of AR & DJ Telfer (1996) 20 FamLR 619 Knight & Sullivan (No 2) [2008] FMCAfam 55 Penfold v Penfold (1980) 144 CLR 31 Pratt v Latta (No 2) [2002] FMCA 43 Ogawa v University of Melbourne (No 2) [2005] FMCA 1216 Re JJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184 RNL & RHB [2005] FMCAfam 520 VDAT v Minister for Immigration (No 2) [2003] FMCA 166 |
| Applicant: | MR RENTOUL |
| Respondent: | MS POYNTON |
| File number: | MLM 9808 of 2006 |
| Judgment of: | Lucev FM (delivered by Scarlett FM) |
| Hearing date: | Written submissions |
| Date of last submission: | 28 September 2007 |
| Delivered at: | Sydney via telephone link to Melbourne |
| Delivered on: | 1 April 2008 |
REPRESENTATION
| Solicitors for the Applicant: | David Stagg Tonkin & Co |
| Solicitors for the Respondent: | Kempsons Lawyers |
ORDER
The Respondent to pay the Applicant’s costs in the sum of $8352.50, with three (3) months to pay.
IT IS NOTED that publication of this judgment under the pseudonym Rentoul & Poynton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
MLM 9808 of 2006
| MR RENTOUL |
Applicant
And
| MS POYNTON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 31 August 2007 the Court delivered judgment in relation to an application filed by the Applicant Father seeking parenting orders concerning the child of his relationship with the Respondent Mother. [1]
[1] ASR & BP [2007] FMCAfam 552.
When the Reasons for Judgment in ASR & BP were delivered the Court made orders, upon the oral application of the Father, for written submissions to be filed in relation to costs.
The Father now seeks that the Mother pay his costs.
Costs
Section 117 of the Family Law Act 1975 (Cth)[2] prescribes the Court’s power to award costs in family law proceedings.
[2] “FL Act”.
The law concerning costs in family law proceedings can be summarised as follows:
a)the Court must find that there are justifying circumstances before making a costs order;
b)there is no additional or special onus on an applicant for an order for costs, thus it is not the law that a costs order can only be made in a clear case;
c)the Court has wide discretion in costs matters;
d)an appellate court would not ordinarily interfere with a costs order unless it is plainly unreasonable; and
e)any costs order made must be just.[3]
[3] Penfold v Penfold (1980) 144 CLR 311 at 315 per Stephen, Mason, Aickin and Wilson JJ; with Murphy J expressing a similar view at 317 (“Penfold”); ReJJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 191 per Gummow J, 219 per Hayne J and 225 per Callinan J; [1998] HCA 44 at para 11 per Gummow J, paras 91-92 per Hayne J and para 125 per Callinan J (“JJT”); RNL & RHB [2005] FMCAfam 520 at paras 169 and 170 per Walters FM; Barker v Barker & Wade (1976) 113 ALR 123 at 131 per Crawford J.
Section 117(2A) expresses criteria to which the Court must have regard in considering what order, if any, to make under s.117(2).[4] Having considered the relevant s.117(2A) factors the Court may make an order on the basis of one, or a combination of, the factors.[5]
[4] JJT CLR at 198 per Kirby J, 220 per Hayne J and 225 per Callinan J; HCA at para 37 per Kirby J, para 98 per Hayne J and para 126 per Callinan J; In the Marriage of I and I(No 2) (1995) 22 FamLR 557-558 per Nicholson CJ, Ellis and Buckley JJ.
[5] In the Marriage of SH and P Brown (1998) 23 FamLR 349 at 353 per Kay J, referred to in C & C (No 2) [2007] FMCAfam 54 at para 12 per Pascoe CFM (“C & C (No 2)”).
The Father seeks costs in this case on a solicitor/client or indemnity basis. There is no doubt that the Court has power to make such an order. [6] The principles upon which indemnity costs will be awarded are well known.[7]
Costs – consideration of Section 117(2A) factors
[6] In the Marriage of Kohan (1992) 16 FamLR 245; In the Marriage of WPJ Munday & MHJ Bowman (1997) 22 FamLR 321 at 321 per Holden CJ: Gaudry & Gaudry(No 2) [2004] FMCAfam 649 at paras 9 and 15 per Scarlett FM (“Gaudry (No 2)”): Genovese v BGC Construction Pty Ltd (No 2) [2007] FMCA 601 at para 47 per Lucev FM (“Genovese (No 2)”).
[7] Genovese (No 2) at para 47 per Lucev FM.
Section 117(2A)(a) – financial circumstances of each party
The Father is employed as a departmental manager in the retail industry in a Melbourne suburban store. The Mother is self employed. The Father works fixed hours from Thursday to Monday (with the fixed hours being varied on Fridays), while the Mother generally works fixed hours from Tuesday to Saturday with the hours on Saturday sometimes being extended. Both the Father and Mother are middle income earners and there is no significant disparity in their incomes. The Mother has the capacity to work longer hours, if necessary, which would increase her income.
On the available evidence it is not possible for the Court to conclude, as the Father suggests it ought to, that the Mother’s financial circumstances, and especially her income or income earning capacity, were much better that that disclosed to the Court. Suspicion is no substitute for proof in such matters.
There is nothing in the financial circumstances disclosed during the course of the hearing which would indicate that the Mother does not have the means to meet a costs order imposed by the Court.
Section 117(2A)(b) – Legal Aid assistance
This factor is not relevant as neither party was provided Legal Aid assistance.
Section 117(2A)(c) – the conduct of the parties to the proceedings
In considering the conduct of the parties to “the proceedings” the Court is limited to their conduct in these proceedings.
The Mother contributed to the elongation of the proceedings, and argued matters which, having regard to the objects of the FL Act, including the presumption of equal shared parental responsibility, and the concept of equal time or substantial and significant time, perhaps ought not to have been argued or argued at such length, including:
a)whether the Child should be allowed to travel interstate to visit the Father’s relatives, which was motivated by personal considerations concerning her relationship with the Father, and being unrelated to the best interest of the Child;[8]
b)the Mother’s unwillingness to facilitate and encourage a continuing relationship between the Child and the Father;[9]
c)the Mother’s persistence in seeking a psychiatric assessment of the Father “in circumstances where there was no evidence to warrant … orders” ;[10]
d)the Mother’s act first and tell the Father later attitude, which extended to advising the Father of plans to christen the Child as an Orthodox Christian for the first time during the hearing;[11]
e)the necessity for the Court to make supervision, parenting programme and mediation orders based on the Mother’s final submissions in which she indicated an intention to hire a private investigator to pursue investigations concerning the “necessity for the Father to undertake a psychiatric assessment” when the Court had indicated there was no evidence of such a necessity;[12] and
f)the Mother’s conduct in the hearing which “was throughout the hearing confrontational and aggressive and exhibited fixed views from which she was generally not prepared to depart”.[13]
[8] ASR & BP at paras 40-43.
[9] ASR & BP at paras 46-48.
[10] ASR & BP at paras 47 and 70.
[11] ASR & BP at paras 46(g) and 57-59.
[12] ASR & BP at para 70.
[13] ASR & BP at para 112
The Mother’s conduct in this regard is sought to be explained by saying that she conducted herself in this manner because she perceived it as being in the best interests of the Child. However, what the Mother argued during the proceedings was (and no matter how passionately felt) the antithesis of what is in the best interests of the Child, and as indicated above (and in the Reasons for Judgment in ASR & BP) much of what she put to the Court was influenced by personal considerations and intransigence.
The Father did put forward a number of contentions related to the need to protect the Child as a consideration under s.60CC(2)(b) of the FL Act. Those contentions did not find favour with the Court, on the evidence led in the proceedings.[14] These matters were however put forward, argued, and in one instance withdrawn,[15] in a manner consistent with the normal conduct of proceedings. Thus, there can be no complaint about the Father’s conduct of the proceedings.
[14] See generally ASR & BP at paras 15-24.
[15] ASR & BP at para 16.
The Mother says that the Court noted the failings of both parents in relation to their demonstrated attitude to fulfilling the responsibilities of parenthood since separation.[16] However, the conduct referred to is prior to these proceedings, and not in relation to these proceedings in the sense referred to in s.117(2)(c) of the FL Act.
[16] ASR & BP at para 64.
In all of the circumstances, this factor weighs heavily in favour of an award of costs to the Father.
Section 117(2A)(d) – Failure to comply with previous orders
This factor is not relevant as the proceedings were not “necessitated” by the failure of the Mother to comply with previous orders of the Court.[17]
[17] Section 117(2A)(d) reads as follows: “whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court”.
Section 117(2A)(e) – whether any party wholly unsuccessful in the proceedings
Neither party was wholly unsuccessful in these proceedings.
The parenting orders made by the Court were essentially those sought by the Father, with some necessary modifications concerning supervision of the orders caused by the Mother’s attitude towards existing and prospective orders of the Court, and the philosophy and objects of the FL Act.[18]
[18] See especially ss. 60B and 60CC (2),(3),(4) and (4A).
The Mother was wholly unsuccessful in obtaining the orders that she sought that:
a)the Father spend no time overnight with the Child;
b)time spent with the Father be during the days and only on alternate weekends;
c)the Mother ought to have the main parental responsibility for the Child; and
d)all contact should be mediated through a named friend of the Mother.
The Mother was therefore not wholly unsuccessful, but she certainly failed in respect of fundamental matters that she argued at length and with much vigour.
An order was made which was specifically sought by the Mother in relation to the Father not smoking in the presence of the Child.[19] Other orders not specifically sought by the Father (including changeover and non-denigration orders) as well as “standard” orders for exchange of contact details were also made.
[19] ASR & BP at paras 26 and 32.
This is a factor which, overall, is probably neutral in relation to costs.
Section 117(2A)(f) - offers
This is not a relevant factor in the circumstances of the case.
Section 117(2A)(g) – other matters
Section 117(2A)(g) has been variously described as being:
a)“All encompassing” and an “independent source of discretion and its affect is not limited by the particular matters set out in the previous paragraphs”:[20]
b)a provision which “could hardly… be expressed in wider terms”.[21]
[20] In the Marriage of AR & DJ Telfer (1996) 20 FamLR 619 at 621 per Lindenmayer J, “previous paragraphs” there referring to the previous paragraphs of s.117(2A) of the FL Act.
[21] JJT CLR at 225 per Callinan J, HCA at para 126 per Callinan J.
The Father submitted that:
a)these proceedings were wholly necessitated by the Mother’s unchanging attitudes towards the Father and were not based on a consideration of the best interests of the Child;
b)the Mother needed to be dissuaded from the type of conduct about which the Court had expressed concern; and
c)if costs were not awarded the Mother would have no disincentive to maintain her current attitudes and would force further proceedings to be undertaken (and it was fair, equitable, just and appropriate that any award be on an indemnity basis).
It is unnecessary to deal with the Mother’s response to this submission. The matter referred to in sub-paragraph (a) has been dealt with elsewhere in these Reasons for Judgment. As to the matters in sub-paragraphs (b) and (c), in Knight & Sullivan (No 2) this Court said:
“Costs ought not be awarded to curb the tendency of a party to litigate. Whilst they may practically have that effect in certain cases, costs are neither a bonus to a successful party nor a penalty to an unsuccessful party. Rather, they are compensation to the successful party for the liability for solicitors professional costs incurred in conducting proceedings.”[22]
[22] [2008] FMCAfam 55 at para 38 per Lucev FM.
In relation to this factor there is therefore no basis for an award of costs as sought by the Father.
Costs – consideration
The significant majority of the costs incurred by the Father in this matter were incurred by reason of the Mother conducting the proceedings in a manner which was unnecessary and contrary to the best interests of the Child.
Having considered all the s.117(2A) factors as set out above, the only question is whether the Mother’s conduct in these proceedings justifies overriding the usual rule that each party bears its own costs in family law proceedings so as to warrant the making of a costs order against her. Having regard to:
a)the nature of that conduct; and
b)the consequences for the hearing of the matter, and in particular that:
i)a matter which really ought to have been settled and the subject of consent orders (or at the very least been confined to very short argument on very discrete points) was argued across a spectrum of primary and secondary considerations in s.60CC(2) and (3) of the FL Act; and
ii)was consequently listed for hearing of one day, although it took two and one half hours,
The Court considers that it is appropriate that the Mother pay the Father’s costs.
Indemnity costs
Having regard to the matters discussed above there is no basis for, and this is not a proper case for, the award of indemnity costs.
Costs – quantum
Costs are to be assessed in accordance with Schedule 1 of the FMC Rules.
The Court certifies under r.21.15 of the FMC Rules that it was reasonable to employ an advocate to appear for the Father at the interim hearing on 31 January 2007 and the hearing on 20 June 2007, but will only award costs for Counsel as advocate for the hearing on
20 June 2007.[23]
[23] FMC Rules, r.21.16.
The Respondent is therefore entitled to:
a)
a Stage 1 amount of $1807.50 for the interim hearing on
31 January 2007;
b)a Stage 5 amount of $3195.00 for preparation of a one day matter;[24]
c)a Stage 6 amount of $750.00 for solicitor’s attendance at a half day hearing on 20 June 2007;[25]
d)a Stage 6 amount of $1175.00 for Counsel’s attendance at a half day hearing on 20 June 2007; and
e)a further Stage 6 amount of $205.00 for the taking of judgment on 31 August 2007 and the explanation of orders.
[24] Costs for Stage 5 are based on the length of hearing prepared for: Pratt v Latta (No 2) [2002] FMCA 43 at para 8 per Driver FM; Ogawa v University of Melbourne (No 2) [2005] FMCA 1216.
[25] Costs for Stage 6 are based on the actual length of hearing: Pratt v Latta (No 2) [2002] FMCA 43 at para 9 per Driver FM;
On the basis set out above the Father would be entitled to costs in the sum of $7132.50 for the hearing and taking of judgment.
There was an application for payment of disbursements. The Court will grant the application for the costs of the filing fee ($121.00), service fees ($230.00) and the hearing fee ($364.00) as being disbursements reasonably incurred. The Father is entitled to a sum of $715.00 for disbursements. Counsel’s fees were claimed as disbursements. Counsel’s fees are dealt with by r.21.16 and Schedule 1 of the FMC Rules, and are therefore not claimable as disbursements.[26]
[26] Colan Products Pty Ltd v Luxton Pty Ltd & Anor (No 2) [2002] FMCA 90 at para 13 per Raphael FM.
The Father is also entitled to costs for the successful costs application. A sum will be set under r.21.02(a) of the FMC Rules for the preparation of written submissions on costs.[27] The Father’s written submissions were reasonably comprehensive: running to sixteen paragraphs and a four pages and addressing factual matters in the context of the s.117(2A) factors. In the circumstances the Court will set a sum of $300.00 as appropriate for the preparation of the written submissions on costs. The Father is also entitled to an additional further Stage 6 amount of $205.00 for the taking of this judgment and the explanation of orders. Costs in the sum of $505.00 for the written submissions on costs and taking of costs judgment today will be ordered.
[27] VDAT v Minister for Immigration (No 2) [2003] FMCA 166 at para 10 per McInnis FM.
There will therefore be an order that the Mother pay the Father’s costs in the sum of $8352.50, with three months to pay.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Polley
Date: 1 April 2008
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