Shamon & Shamon (No 5)
[2022] FedCFamC1F 407
•3 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shamon & Shamon (No 5) [2022] FedCFamC1F 407
File number(s): SYC 2375 of 2021 Judgment of: CHRISTIE J Date of judgment: 3 June 2022 Catchwords: FAMILY LAW – COSTS – Where the fourth respondent filed an application for contravention – Where the contravention application was later withdrawn – Where the fourth respondent now seeks costs for that application Legislation: Family Law Act 1975 (Cth), s 117. Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 3 June 2022 Place: Sydney Solicitor for the Applicant: Kheir Lawyers Solicitor for the Respondent: Law Bridge Lawyers ORDERS
SYC 2375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR R SHAMON
Applicant
AND: MS SHAMON
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
3 JUNE 2022
THE COURT ORDERS THAT:
1.The fourth respondent’s application for costs relating to the contravention application is dismissed.
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 the pseudonym Shamon & Shamon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an application for costs. Mr R Shamon, who is the fourth respondent in the substantive proceedings filed a contravention application on 21 March 2022.
In that contravention application, the fourth respondent was seeking to have Ms Shamon (“the wife”), as respondent to the contravention, dealt with for contravention of an order made on 25 February 2022. The specific orders which it is alleged the respondent to the contravention application had contravened, were Orders 4 and 5 of the consent orders made 25 February 2022 (“the consent orders”).
The consent orders provided for the wife to file and serve a Defence to Points of Claim by 11 March 2022 and a supporting affidavit. When the wife failed to comply with that order ten days later, the fourth respondent filed the application for contravention.
On 5 May 2022 the wife filed and served her Defence to Points of Claim and on 6 May 2022, the fourth respondent withdrew the contravention application. The proceedings, at least these interlocutory proceedings, could have ended there. However, the fourth respondent as he is entitled, now seeks the costs of that contravention application.
In submissions filed on behalf of the wife it is asserted that at the time that the wife was due to file her Defence to Points of Claim, her solicitor was unwell. The submissions filed in support of the wife’s position also set out a chronology of events taking place in March 2022, including the need for the wife to bring an urgent application seeking orders that the husband vacate the former matrimonial home.
I accept that the contravention application by the fourth respondent was necessitated by the wife’s failure to comply with an order of the Court.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that, in the usual course consistent with s 117(1) of the Act, each party bear his or her own costs.
Where there are justifying circumstances, the Court has a discretion, and may depart from the usual rule. I am entitled to have regard to all of the matters listed in s 117(2A) of the Act in determining whether or not it would be appropriate to depart from the usual rule. The fourth respondent has contended that the following are relevant: firstly, the financial circumstances of the parties. The fourth respondent says that his financial circumstances are perilous. His Costs Notice suggests he has borrowed money to pay his legal fees. It was not initially plain from whom but it appears on the basis of submissions made to me in court today that those loans have come from family members. It is not plain which part of those fees relate to this application. It is plain however that, after the contravention application was resolved by being withdrawn there will have been the costs of submissions and of appearances today. The wife may be, as regards income, in a stronger financial position than the fourth respondent but it cannot be concluded that her financial circumstances are such that she has income available to her to meet a costs order. To the extent that it is suggested that she has available to her, monies recently released to her by way of court order, it has to be understood that those sums were provided to her for the purpose of meeting outstanding legal fees and in payment of spouse maintenance for her self-support.
Secondly, the fourth respondent indicated that it would be relevant to have regard to the conduct of the parties. I have had regard to the conduct of the parties on this particular application and do not find there is any conduct on the part of the wife during the period she was in default which suggests that she has acted in a manner which warrants the making of a costs order. The document which was to be filed was filed late and the application for contravention was withdrawn. To consider this conduct would amount to considering her failure to comply with the order twice.
Separately I have considered her failure to comply with the existing order. The period for which she did not comply with the order was not extensive and, in the context of the litigation as a whole, I do not find that, at this stage of the proceedings where there are so many factual issues yet to be determined, it is appropriate to find that her failure to comply with the order in a timely fashion is sufficient justifying circumstances.
The fourth respondent sought costs on an indemnity basis. Having determined that I will refuse the costs application in the exercise of my discretion it is unnecessary to consider the request that costs be on an indemnity basis. I do however, note that I do not have before me a copy of the costs agreement between the solicitor for the fourth respondent and the fourth respondent before me. I do not find that there is any basis for ordering indemnity costs in this particular matter, particularly in circumstances where the factual findings, which will need to be made at trial, do not allow me to make the types of findings as are required when one is considering the making of an indemnity costs order.
Having considered each of the relevant matters under s 117(2A) of the Act, I decline to make an order for costs of the contravention application.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 8 June 2022
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