Shirley and Moore
[2020] FamCA 220
•8 April 2020
FAMILY COURT OF AUSTRALIA
| SHIRLEY & MOORE | [2020] FamCA 220 |
| FAMILY LAW – COSTS – where the Court is persuaded that the circumstances justify the making of an order for costs but is not persuaded that it is just to make an order for costs on an indemnity basis – where costs are ordered in a fixed amount. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Rice v Asplund (1979) FLC 90-725 Yunghanns v Yunghanns (2000) FLC 93-029 |
| APPLICANT: | Mr Shirley |
| RESPONDENT: | Ms Moore |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | PAC | 3139 | of | 213 |
| DATE DELIVERED: | 8 April 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | Determined in Chambers following the receipt of written submissions |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | By way of written submissions dated 21 February 2020 and by way of written submissions in reply filed 6 March 2020 |
| THE RESPONDENT: | Fallu McMillan Lawyers – By way of written submissions in response filed 28 February 2020 |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland by correspondence dated 11 February 2020 |
Orders
IT IS ORDERED THAT
The Respondent pay the Applicant’s costs of and incidental to the Initiating Application filed 7 August 2019, with such costs to be fixed in the amount of $3,500.00 and to be paid by 8 December 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shirley & Moore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: PAC 3139 of 213
| Mr Shirley |
Applicant
And
| Ms Moore |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
By Application in a Case filed 21 February 2020, Mr Shirley seeks an order that Ms Moore pay his costs of and incidental to the Initiating Application she filed on 7 August 2019 (the August Initiating Application) and that such order for costs be made on an indemnity basis.[1] The amount sought on an indemnity basis is $9,620.50. He also seeks that Ms Moore be ordered to pay the same within 14 days of the date of the order.
[1] See: written submissions dated 21 February 2020 (and filed 21 February 2020) and written submission in reply filed 6 March 2020.
Mr Shirley’s application follows the Order made on 7 February 2020, by which the August Initiating Application was dismissed. As noted in the Reasons delivered in support of that Order, this was because I was not persuaded that Ms Moore had established a sufficient change in circumstances to warrant the Court revisiting the parenting arrangements put into place by the terms of the final parenting Order made in late 2018.
Ms Moore opposes the making of any order for costs.[2] She submits that each party should bear their own costs.
[2] See: written submission filed 28 February 2020.
The Independent Children’s Lawyer advised[3] that she did not intend to seek an order that Ms Moore pay Legal Aid Queensland’s costs of and incidental to the August Initiating Application.
[3] In correspondence dated 11 February 2020.
An appreciation of the context within which Mr Shirley seeks the order that he does can be gained from reference to the Reasons for Judgment delivered on 7 February 2020.
Do the circumstances justify the making of an order as to costs?
Section 117(1) of the Family Law Act1975 (Cth) provides that, subject to those provisions listed therein, each party to proceedings under the Act shall bear his or her own costs. However, if the Court is of the opinion that there are circumstances which justify it, the Court may, subject to the listed provisions and applicable Rules of Court, make such order as to costs as it considers just.[4] In considering what order, if any, as to costs should be made, the Court must have regard to the matters set out in s 117(2A) of the Act.
[4] Section 117(2) Family Law Act 1975 (Cth).
It is uncontroversial that, of those matters particularised in s 117(2A) of the Act, the parties’ financial circumstances, their conduct and their respective success in prosecuting or opposing the application by Mr Shirley for an order summarily dismissing the August Initiating Application are particularly relevant.
Mr Shirley also submitted that the Court should be informed by what he asserted was a concluded agreement with Ms Moore about the quantum of costs she would pay to him; however, Ms Moore submitted that the discussions about this issue were conducted on a “without prejudice” basis and should not properly be considered in the determination of Mr Shirley’s application that she be ordered to pay his costs of and incidental to the August Initiating Application on an indemnity basis. I decline to accept the submissions made by Ms Moore in this respect and consider that the contents of the correspondence annexed to the submissions filed on her behalf are admissible and relevant, notwithstanding its “without prejudice” nature.[5]
[5] See: Ss 131(2)(g) and (h) Evidence Act 1995 (Cth).
The financial circumstances of the parties
Neither party was in receipt of Legal Aid. Both parties engaged legal representation: Mr Shirley for assistance in preparing material and submissions and Ms Moore in order to be represented at the hearing of Mr Shirley’s application to dismiss the August Initiating Application on the basis of the application of the “rule” in Rice v Asplund.[6]
[6] (1979) FLC 90-725.
Ms Moore is already the subject of a costs order in favour of Mr Shirley: the Full Court has already ordered that she pay his costs of her abandoned appeal against the final orders made on 31 October 2019, fixed in the amount of $2,800.00. Mr Shirley has received only $160.00 of the amount payable, by way of instalments of $20.00 per payment.
Given that Ms Moore chose to be represented by Mr Page QC at the hearing on 30 January 2020, there is some force in Mr Shirley’s submission that in doing so she in essence acted to prioritise this engagement over her already ordered obligation to pay his costs of the abandoned appeal.
Ms Moore did not disclose the extent of her entitlements to superannuation in the Financial Statement filed in support of her opposition to the making of an order that she pay Mr Shirley’s’ costs in the manner he seeks or at all. However, such entitlements would not, in any event, be available to her to use to meet any order which might be made.
Whilst Mr Shirley takes issue with Ms Moore’s evidence and assertions about her financial situation and the quantum of the funds she asserted she spends in order to spend time with their child pursuant to the terms of the operative parenting order, I accept that hers is not a position of financial strength.
However, and despite Ms Moore’s submission to the effect that her financial circumstances are such as to persuade that the circumstances do not justify the making of an order that she pay Mr Shirley’s costs, her engagement of legal representation persuades me that she is able to garner funds to pay legal costs when necessary and that her financial circumstances are not so strained as to prevent her from being able to meet an order for costs in a modest sum. In addition, even if this were not the case, authority makes clear that impecuniosity on the part of a party opposing the making of an order for costs is, of itself, no bar to an order for costs being made where it is otherwise warranted.[7]
[7] See, for example, D & D (Costs) (No 2) (2010) FLC 93-435.
I also consider that Ms Moore’s proposal to Mr Shirley that she pay him $3,500.00 to discharge any obligation to pay his costs of and incidental to the August Initiating Application is evidence of her assessment of her own capacity to meet such a liability.
Whilst Ms Moore also emphasised that Mr Shirley had not placed any material before the Court about his financial position, other than that from which it seemed open to infer that he was able to pay his legal costs when required to do so, Mr Shirley submitted that he was seeking that those from whom he obtained legal assistance in the proceedings agree to him entering into a payment plan to discharge his indebtedness to them.
Conduct of the parties in relation to the proceedings
To the extent that it was submitted by Mr Shirley that the Court should be persuaded to make an order for costs so that Ms Moore will understand the consequences of her actions and in an attempt to deter her from filing further proceedings, which he regarded as “vexatious”, I note that an order for costs is not a punishment, nor is it an order to be made to deter litigants from prosecuting applications open to them; rather, it is made to compensate a party for the costs to which that party has been put.
I decline to accept the submission that, for the August Initiating Application to be considered anything other than vexatious, Ms Moore would have had to have supported the same by evidence which addressed the issues raised in the Reasons for Judgment delivered on 23 November 2018. Given the findings I have previously made about Ms Moore’s functioning and belief structures (as, for example, reiterated at paragraphs 33 and 34 of the Reasons for Judgment delivered 7 February 2020), I accept as much more likely than not that she considered her actions in filing the August Initiating Application to be reasonable.
I am not persuaded that the proceedings commenced by the August Initiating Application were necessitated by the failure of a party to them to comply with previous orders of the Court.
Has any party been wholly unsuccessful in the proceedings?
Ms Moore conceded that she had been wholly unsuccessful in prosecuting the August Initiating Application by which she sought to discharge the final parenting orders made on 31 October 2019.
Whilst Mr Shirley was entirely successful in prosecuting his position that the August Initiating Application should be dismissed – and, in that sense, he obtained everything that he sought at the hearing of the same – such success, of itself, does not mandate the making of an order for costs: otherwise, there may be an inappropriate distraction from a proper consideration of all of the other matters particularised in s 117(2A) of the Act, being matters to which the Court must give consideration in determining whether the circumstances in any case are such as to justify the making of an order that one party pay another’s costs.
Any other relevant matters
I accept Ms Moore’s submission to the effect that her conduct vis-à-vis the appeal previously lodged in relation to the November 2018 Order is not relevant to the determination of the current application. Such conduct was the subject of consideration by the Full Court in determination of Mr Shirley’s application that she pay his costs of the abandoned appeal.
Further consideration
On balance, in the circumstances of this case and in the broad exercise of discretion accorded to the Court in determining applications for costs – and placing particular weight on the fact that Ms Moore was wholly unsuccessful in prosecuting the August Initiating Application, that she had the apparent financial capacity to engage legal representation herself and she had offered to pay Mr Shirley $3,500.00 toward his costs associated with responding to that Application – I am of the opinion that the circumstances justify the making of an order that Ms Moore pay Mr Shirley’s costs of and incidental to the August Initiating Application.
What are the just terms of the order for costs?
Authority makes clear that, unless there are exceptional circumstances, an order for costs should be made on a party and party basis.[8]
[8] See D & D Costs (No. 2) (2010) FLC 93-435; Limousin v Limousin (Costs) (2008) 38 Fam LR 478; Yunghanns v Yunghanns (2000) FLC 93-029; In the Marriage of Kohan (1993) FLC 92-340; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J.
I am not persuaded that the circumstances here are exceptional or extreme or such as to warrant departing from “the usual course” of ordering the payment of costs on a party/party basis to order that costs be paid on an indemnity basis – something which, as has been said in well-known authority, is a “very great departure” from the “normal standard” in this and other jurisdictions.[9]
[9] D & D Costs (No. 2) (2010) FLC 93-435; Limousin v Limousin (Costs) (2008) 38 Fam LR 478; In the Marriage of Kohan (1993) FLC 92-340; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J.
Even if I had been persuaded otherwise, the state of the evidence is such that I would not have been able to determine the extent to which the costs sought by Mr Shirley exceed those which would likely be allowed if costs were assessed on the standard party/party basis.[10]
[10]In the Marriage ofKohan (1993) FLC 92-340.
I consider that the just order is that Ms Moore pay Mr Shirley’s costs fixed in the amount of $3,500.00 by 8 December 2020. I have arrived at this conclusion because I consider fixing the amount of costs to be paid rather than requiring them to be assessed will ensure that neither party is put to further costs in determining the quantum of costs payable by Ms Moore to Mr Shirley and such sum is one which Ms Moore suggested and Mr Shirley accepted, albeit prior to him incurring the costs associated with filing submissions in support of his application for costs. I also consider it just to allow Ms Moore until 31 December 2020 to pay this amount to Mr Shirley. Extending the time in this manner well beyond that which would ordinarily be ordered will mean that Ms Moore can extinguish this liability by provisioning for and making a payment of about $13.00 per day.
For these short reasons, then, I make an order in the terms outlined at the commencement of these Reasons.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 April 2020.
Associate:
Date: 8 April 2020
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