FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Schnur & Urbina (No 2) [2024] FedCFamC1F 477
File number(s): MLC 13501 of 2020 Judgment of: JOHNS J Date of judgment: 18 July 2024 Catchwords: FAMILY LAW – COSTS – costs awarded against practitioner – where the applicant brought an application against the respondent’s counsel for costs thrown away – where the final hearing was unable to proceed on its listed date – where the respondent’s counsel failed to appear when called – where the respondent’s counsel was not adequately prepared for the final hearing – where the respondent’s counsel submits costs can only be awarded against a solicitor and not counsel – consideration of s 117(2A) factors – costs order made Legislation: Family Law Act 1975 (Cth) ss 4, 117(1), (2), (2A)
Federal Circuit and Family Law of Australia (Family Law) Rules 2021 (Cth) rr 12.15, 12.17(1) & (3), Schedule 3
Cases cited: I and I (1995) FLC 92-625
Schnur & Urbina [2024] FedCFamC1F 374
Division: Division 1 First Instance Number of paragraphs: 41 Date of last submission/s: 31 May 2024 Date of hearing: Heard in Chambers on the papers Place: On the Papers Counsel for the Applicant: Ms Morkos Solicitor for the Applicant: Aboriginal Family Violence Prevention & Legal Service Counsel for the Respondent: Mr B Solicitor for the Respondent: Rodriguez Family Lawyers Counsel for the Independent Children's Lawyer: Ms Hutchings Solicitor for the Independent Children's Lawyer: Ms Welsh ORDERS
MLC 13501 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCHNUR
Applicant
AND: MS URBINA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.That within 28 days of the date of these orders, the respondent’s Counsel, Mr B, pay the applicant’s costs of and incidental to the hearings on 29 and 30 April 2024 and 7 May 2024, fixed in the sum of $4,541.00.
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 the pseudonyms Schnur & Urbina has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 30 April 2024, being the second day of the final hearing (which was listed for eight days), I made orders adjourning the final hearing of these proceedings to 8 October 2024. The proceedings…
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- AGLC
- Schnur & Urbina (No 2) [2024] FedCFamC1F 477
- Case
- [2024] FedCFamC1F 477
- Decision Date
CaseChat Overview and Summary
The court addressed the legal issue by examining the definition of a lawyer under section 4 of the Act and rule 1.05 of the Family Law Rules. It concluded that the court indeed had the power to make a costs order against Mr Urbina, who is a member of counsel and a legal practitioner in the State of Victoria. The court found that Mr Urbina's conduct, including his failure to appear and his lack of preparedness, warranted the imposition of costs. The court also considered the submissions regarding the financial circumstances of the parties and the conduct of the parties during the proceedings.
The court made a detailed assessment of the evidence presented, including the submissions regarding Mr Urbina's conduct and the father's application for costs. It was found that Mr Urbina had not signed the Register of Practitioners maintained by the High Court of Australia, thereby lacking standing to appear in the matter. Additionally, Mr Urbina had failed to appear before the court on multiple occasions and had not properly prepared the case for the mother. Based on these findings, the court concluded that an order for costs was justified. The court also rejected Mr Urbina's submissions regarding the vagueness of the complaints and the misunderstanding of his engagement terms.
The court ordered that Mr Urbina pay the applicant's costs of and incidental to the hearings on 29 and 30 April 2024, and 7 May 2024, in the sum of $4,541.00. The form of the order is subject to entry in the Court’s records, and any minor typographical or grammatical errors may be subject to review or variation under the relevant rules. This decision underscores the court's authority to hold legal practitioners accountable for their conduct during family law proceedings.
Orders
Orders of the court
MLC 13501 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR SCHNUR
Applicant
AND:
MS URBINA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1. That within 28 days of the date of these orders, the respondent’s Counsel, Mr B, pay the applicant’s costs of and incidental to the hearings on 29 and 30 April 2024 and 7 May 2024, fixed in the sum of $4,541.00.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Given the definition of lawyer, as set out in s 4 of the Act and r 1.05 of the Rules, I am satisfied that the Court has the power to make a costs order against Mr B, he being a member of counsel who is a legal practitioner in the State of Victoria. Accordingly, that contention must fail.SECTION 117(2A) CONSIDERATIONS It was submitted that the father is unemployed and in receipt of Centrelink payments. There is no submission made as to the mother’s current financial circumstances. The father is in receipt of a grant of legal assistance from Victoria Legal Aid. The mother is in receipt of funding from Victoria Legal Aid pursuant to a grant made under the Commonwealth Family Violence Cross-Examination Scheme. It is submitted by the father that there is no evidence that he has conducted himself in any way other than appropriately. As to the mother, it is contended that she has failed to comply with orders on occasion and persists in her failure to meet payments for the release of the single expert report. The considerations identified at s 117(2A)(d) to (f) inclusive are not relevant to the father’s application. It was submitted that the conduct of the mother’s Counsel is a relevant consideration in the determination of the question of costs. As to that conduct, it was submitted, and I have found that the conduct of the mother’s Counsel at the final hearing necessitated his referral to the Legal Services Commissioner for investigation; orders were made to that effect on 7 May 2024. It was further submitted that as at the first day of hearing on 29 April 2024, it was apparent that the mother’s Counsel had failed to properly prepare the mother’s case, he informing the Court that:-·He was appearing only for the purposes of cross-examination of the father;·He had not prepared submissions; and·He had not provided a list of objections to evidence as ordered. In addition to the matters raised, it became apparent after the hearing on 30 April 2024 that Mr B did not have standing to appear in the matter as he has not signed the Register of Practitioners maintained by the High Court of Australia. Further, Mr B failed to appear before the Court on 29 April 2024 and 7 May 2024 when the matter was called on. Having regard to those matters, it was submitted that Mr B failed to appropriately prepare the case for the mother and failed in his duty to the Court and to the mother. In light of that conduct, it is submitted that an order for costs is justified. Mr B submits that the complaints raised by the father in the submissions filed are “vague” and lack specific detail. I do not accept that submission. I also have regard to my Reasons for Judgment delivered 31 May 2024 as to my findings in relation to Mr B’s conduct during the proceedings that resulted in the referral of Mr B’s conduct to the Legal Services Commissioner for investigation (Schnur & Urbina [2024] FedCFamC1F 374). Mr B also submits that due to a misunderstanding by him as to the terms of his engagement, there is no justification for a costs award. I do not accept that submission in circumstances where:-·Notwithstanding his own assertions that he was briefed to cross-examine the father, he had accepted a brief to appear in another Court on the first day of the hearing; and·It was communicated to him that it was the expectation of the Court that he appear for the whole of the proceedings both at the earlier case management hearing conducted on 16 April 2024 as well as on the first day of hearing.