Robb & Harper (No 4)

[2025] FedCFamC2F 13

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Robb & Harper (No 4) [2025] FedCFamC2F 13   

File number(s):

MLC 1668 of 2024

Judgment of:

JUDGE GLASS

Date of judgment:

10 January 2025

Catchwords:

FAMILY LAW – COSTS – where the Respondent was wholly unsuccessful – where proceedings were necessitated by the Respondent’s repeated failure to comply with previous Orders – where indemnity costs are warranted due to the Respondent’s misconduct

Legislation:

Family Law Act 1975 (Cth), s 117

Cases cited:

Davis & Peterson (2023) FLC 94-130

Kohan & Kohan (1993) FLC 92-340

Loomis & ML Lawyer (2016) FLC 93-731

Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920

Muldoon & Carlyle (2012) FLC 93-513

Division:

Division 2 Family Law

Number of paragraphs:

16

Date of last submission/s:

20 December 2024

Date of hearing:

In chambers on the papers

Place:

Melbourne

Counsel for the Applicant:

No appearance

Solicitor for the Applicant:

Leslie Family Law

The Respondent:

Self-represented litigant

ORDERS

MLC 1668 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ROBB

Applicant

AND:

MS HARPER

Respondent

ORDER MADE BY:	JUDGE GLASS
DATE OF ORDER:	10 JANUARY 2025

THE COURT ORDERS THAT:

1.The Respondent pay the Applicant’s costs on an indemnity basis in the sum of $37,768.40.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE GLASS

1. On 22 November 2024, I made final parenting Orders in proceedings between Mr Robb and Ms Harper.

2. Mr Robb seeks his costs of the proceedings on an indemnity basis. Alternatively, he seeks his costs be quantified pursuant to the Court’s scale of costs.

3. Ms Harper opposes the application.

4. Pursuant to section 117 of the Family Law Act 1975 (Cth), each party is to bear their own costs. Nevertheless, the Court has a discretion to make such order as to costs as it considers just, if the circumstances justify doing so, having regard to the matters prescribed by subsection 117(2A) of the Act.

5. Mr Robb runs a business and earns approximately $2,226 net each fortnight. He owns a commercial real property and a motor vehicle.

6. Ms Harper effectively claims that she is impecunious. She is in receipt of government benefits and undertakes some casual work. She drives an old motor vehicle and rents her home. It is well established that impecuniosity is not a basis for the refusal to make a costs order.[1] Were it otherwise, impecunious litigants could litigate with impunity and immunity, irrespective of their conduct or other factors relevant to costs.[2]

   [1] Davis & Peterson (2023) FLC 94-130 at [75].

   [2] Loomis & ML Lawyer (2016) FLC 93-731 at [59].

7. Neither party received a grant of legal aid.

8. The proceedings were necessitated by Ms Harper’s failure to comply with previous Orders of the Court providing for X to live with Mr Robb.

9. Ms Harper withheld X from Mr Robb in January 2024. He thereafter issued proceedings seeking X’s return to his care and a moratorium on X’s time with Ms Harper. Upon those outcomes being achieved, he discontinued his application.

10. Ms Harper again withheld X from Mr Robb in April 2024 resulting in further proceedings and the issue of a recovery Order. Ms Harper again withheld X from Mr Robb in May 2024 and once again in June 2024. The recovery Order was re-executed on both further occasions.

11. Ms Harper failed to file documents as ordered by the Court and failed to attend the final hearing on 11 November 2024.

12. Ms Harper was wholly unsuccessful in her application seeking orders for X to live with her.

13. I am satisfied that the circumstances justify an order for costs in favour of Mr Robb.

14. Exceptional circumstances are required to make an order for indemnity costs.[3] These proceedings were brought as a result of Ms Harper’s failure to comply with final parenting Orders made in August 2022. They were continued in circumstances where Ms Harper continued to fail to comply with those Orders. Ms Harper failed to prosecute her application for a variation to the Orders.

    [3] Muldoon & Carlyle (2012) FLC 93-513 at [115] and the cases there cited.

15. An order for indemnity costs will weigh heavily on Ms Harper given her financial circumstances.[4] Nevertheless, I am satisfied that her misconduct is of an exceptional nature. Despite it being a very great departure from the normal standard,[5] I am satisfied that an order for indemnity costs is warranted.

    [4] Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920 at [21] and the case there cited.

    [5] Kohan & Kohan (1993) FLC 92-340 at 79,611.

16. Ms Harper made no submissions with respect to the quantum of costs sought by Mr Robb. I am satisfied that the sum quantified by reference to an itemised scale of costs is appropriate.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass.

Associate:

Dated:       10 January 2025