Siddell & Siddell (No 2)
[2022] FedCFamC2F 1522
Federal Circuit and Family Court of Australia
(DIVISION 2)
Siddell & Siddell (No 2) [2022] FedCFamC2F 1522
File number(s): ADC 1336 of 2020 Judgment of: JUDGE BROWN Date of judgment: 9 November 2022 Catchwords: FAMILY LAW – application for costs – assessment of legal principles applicable to costs – proceedings relating to release from Harman Undertaking Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sch 1, ch 12, rr 4.01, 12.08, 12.13, 12.17
Cases cited: In the Marriage of I & I (No 2) (1995) 22 Fam LR 557
Jensen & Jensen (1983) FLC 91-26
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: In Chambers on the papers Place: Adelaide Counsel for the Applicant:
Mr Werner Solicitor for the Applicant: O’Keefe Schroeder Lawyers Counsel for the Respondent: Mr Mort Solicitor for the Respondent: In person ORDERS
ADC 1336 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SIDDELL
Applicant
AND: MS SIDDELL
Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
9 nOVEMBER 2022
THE COURT ORDERS THAT:
1.The Applicant do pay to the Respondent’s costs in the sum of TWO THOUSAND FOUR HUNDRED AND SEVENTY FIVE DOLLARS ($2,475.00).
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).
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 a pseudonym Siddell & Siddell (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to competing applications for costs, which the parties concerned have requested be dealt with on the papers in order to save further costs.
On 31 August 2022, I determined that Mr Siddell could utilise court documents and other records subpoenaed by him, relating to family law proceedings, instituted by him against his former wife, Ms Siddell, in criminal proceedings against him in the Victorian Magistrates Court.
In the jargon of lawyers, Mr Siddell’s application concerned what is called a Harman Undertaking. By way of background, Mr Siddell and Ms Siddell had been engaged in family law proceedings, before me, in City O, regarding the division of their property and parenting arrangements for their children.
As a consequence of these proceedings, each of them prepared affidavits, which were used in the proceedings before me. A central evidentiary issue, in those proceedings, was an allegation made by Ms Siddell that Mr Siddell had subjected her to a protracted series of sexual assault, during their lengthy marriage.
As a corollary of these serious allegations, an Independent Children’s Lawyer was appointed for the Siddell children. In the course of the Independent Children’s Lawyer discharging her statutory responsibilities, she issued a subpoena directed to Ms Siddell’s medical practitioners, requiring the provision of Ms Siddell’s medical records, which were duly produced to the court.
Following the completion of the family law proceedings, Mr Siddell was charged with a large number of criminal offences of which Ms Siddell was the victim and complainant. In this context, it was the advice of his legal representation that he should utilise the documents prepared in the family law proceedings in the defence of the criminal proceedings.
As was explained in the earlier judgment,[1] those documents were covered by an implied undertaking that they would be only utilised in the proceedings for which they were prepared or subpoenaed, namely the family law proceeding. In these circumstances, it was necessary for Mr Siddell to apply to this Court to be released from his Harman Undertaking in order to utilise the relevant documents in the criminal proceedings against him.
[1] See Siddell & Siddell [2022] FedCFamC2F 1239.
For the reasons already provided, in the earlier judgment, I was satisfied that it was in the interest of the administration of justice that Mr Siddell could utilise the documents in the way in which he proposed. As such, Mr Siddell was wholly successful in his application, which had been opposed by Ms Siddell.
The nicety of the case, in respect of the issue of costs, can be summarised as follows. Mr Siddell’s committal was scheduled for 1 September 2022. He brought his application to utilise the documents in question on 23 August 2022. The application was heard on 31 August 2022, on an urgent basis, due to the imminence of the committal hearing.
Accordingly, any prospect of the parties resolving the issue consensually was negated by the need for the application to be listed and argued urgently. Ms Siddell complains that she was given insufficient time to seek legal advice about the implication and for sensitive issues relating to the potential use of her medical records to be resolved.
It is in this context that Ms Siddell seeks her costs, which she have been quantified as totalling $4,950.00, broken up as follows:
·Counsel appearance fee $3,300;
·Conference fee $550;
·Cost submission $1,100.
From Ms Siddell’s perspective, the sensitivity of the case related to the potential use to which her subpoenaed medical records might be put by Mr Siddell, whom she does not trust. Through her counsel, Mr Mort, at the time of the earlier hearing, she sought that the court should impose some safeguards in regards to their use. Ultimately, I determined that Mr Siddell’s legal advisors should be restrained by an injunction from providing these documents to their client.
Accordingly, Mr Siddell was wholly successful in his application in regards to being released from his implied undertaking. However, on the other hand, Ms Siddell also obtained some element of the relief, which she sought, in respect of the potential dissemination of her medical records to her former husband.
In this context, she complains that she was put to unnecessary expense by reason of the late provision of Mr Siddell’s application to her, which prevented this not unduly complex issue from being resolved without the court’s intervention.
In this context, it is her assertion that it is axiomatic that Mr Siddell must have had some significant degree of notice of the criminal proceedings listed against him and of the likely need for him to seek this court’s dispensation to use the various documents in question in those proceedings.
On the other hand, it is Mr Siddell’s position that no order for cost should be made, given the Court’s recognition of the forensic legitimacy of his application. It is the submission of his counsel, Mr Werner that the legal principles related to release from such implied undertaking is well settled and uncontroversial.
As such, it was untenable for Ms Siddell to oppose his client’s application in toto. In these circumstances, Mr Werner submits there is no circumstance justifying the Court’s departure from the general rule, applicable in family law proceedings, that each party should bear their own costs.
the legal principles Applicable
Section 117(1) of the Act abolishes for the purpose of family law proceedings, the general rule that, in civil proceedings, costs follow the event. It provides that each party should bear his or her own costs in such proceedings.
However, pursuant to section 117(2), if the Court is of the opinion that there are circumstances that justify it in doing so, it may, subject to a number of stipulated considerations, make such order as to costs as it considers just.
The relevant considerations are set out in section 117(2A) of the Act and are as follows:
•The financial circumstances of each of the parties to the proceedings;
•Whether any party to the proceedings is in receipt of legal aid;
•The conduct of the parties to the proceedings, including in respect of issues of discovery and production of documents;
•Whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court;
•Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
•Whether any party has made an offer in writing to settle the proceedings and the terms of any such offer;
•Such other matters as the court considers relevant.[2]
[2] Family Law Act 1975 (Cth) s 117(2A).
In the case of In the Marriage of I & I (No.2),[3] the Full Court said as follows:
Section 117 confers upon the court a broad discretion in relation to costs. That discretion is one which the Court should not seek to fetter. As was pointed out by the High Court in Penfold v Penfold:
It is an accurate description of s 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s 117(2). As subs (1) is expressed to be subject to subs (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs.[4]
[3] In the Marriage of I & I (No 2) (1995) 22 Fam LR 557.
[4] In the Marriage of I & I (No 2) (1995) 22 Fam LR 558 (Nicholson CJ, Ellis and Buckley JJ).
applicant’s submissions
It is Mr Siddell’s position that he had no viable alternative other than to bring his application, otherwise he would have been hamstrung in his defence of extremely serious criminal charges. In this context, he asserts that it is axiomatic that the documents in question, given their provenance, can only be considered highly relevant to the charges against him and, as such, any opposition to their proposed use futile.
In addition, Mr Werner submits that the applicable legal authorities, germane to a person being released from a Harmon Undertaking, are uncontroversial, particularly when the use sought relates to the defence of criminal charges. As such, it is his submission that the most compelling consideration relevant to the question of costs is the fact that his client was wholly successful.
By necessary implication, Mr Werner concedes that the relevant application was made at a late stage and, as a consequence, Ms Siddell did not have a great deal of time to consider her position or prepare any formal answering material. However, in this context, he does note that she had sufficient time to confer with her counsel, but this did not lead her to propose any potential compromise, rather her stance remained to oppose the application in toto, which ultimately proved to be an injudicious decision. In these circumstances, it is Mr Werner’s contention that any prejudice arising from the late notice of the application is significantly ameliorated and not justifying of an order for costs.
respondent’s submissions
Mr Mort, counsel for Ms Siddell points to the fact, which is incontestable, that due to compromise of the proceedings in this court, prior to trial, there was no testing of the extremely serious allegations made by his client against Mr Siddell. In these circumstances, it is his submission that it was appropriate and justified for Ms Siddell to greet the prospect of Mr Siddell being released from his implied undertaking, particularly in respect of her medical records, with an extreme level of caution. Essentially, it cannot be said that she was foolhardy not to give her wholesale consent immediately.
In these circumstances, it is Mr Mort’s submission that the lateness of the filing of the application becomes telling. In this context, he points to the fact that Mr Siddell was charged in September of 2021 and the committal listed for hearing in February of 2022. In this context, he points to the obvious sensitivity of Mr Siddell personally having access to his client’s wide-ranging medical records, relating to her treatment over many years.
It is further Mr Mort’s submission that the court, as his client submitted was appropriate, adopted a cautious and conservative approach to Mr Siddell’s personal access to the documents in question and imposed injunctions in respect of their use. Thus the approach adopted by his client has been vindicated and she should be entitled to her costs, as sought.
discussion
It is Mr Mort’s submission that his client is extremely straitened financial circumstances. She is in receipt of social security and has an exemption from seeking child support due to issues of family violence. She has no assets of significant value. I know little of Mr Siddell’s financial circumstances. In the earlier family law proceedings, he described himself as a farm labourer. I have not been advised if either party is in receipt of legal aid. I assume not.
In the earlier matrimonial property proceedings, the most significant item of property was the parties’ former family home in Town F, which was agreed to be sold, with the proceeds divided 67.5/32.5% in Ms Siddell’s favour. It is her position that the amount she received was modest and long spent. Accordingly, I accept in general terms, that neither party is in a strong financial position.
In these circumstances, it is Mr Mort’s submission that the amount of costs incurred by his client, in the current proceedings, must be regarded as significant indeed. I have not been advised as to the quantum of Mr Siddell’s costs.
It is in my view significant that Mr Siddell has not provided any explanation as to why he delayed in bringing the current application until approximately six months after the date fixed for his committal hearing. I agree with the submissions of both counsel, albeit that they approach the issue from differing perspectives, that this was not a complicated matter.
On the one hand, I agree with Mr Werner that the relevant legal authorities were likely to lead indisputably to the court determining that Mr Siddell should be able to utilise the documents produced in the family law proceedings concerning him and his former spouse in serious criminal proceedings involving the same parties and corresponding allegations.
On the other hand, I agree with Mr Mort’s submission that it was the overwhelming likelihood that the court would be cognisant of the obvious sensitivity of Ms Siddell’s medical records and was therefore probable that some conditions would attach to their wholesale dissemination.
In these circumstances, it seems to me to be the case that this was a matter that was both capable of a consensual resolution and should have been so compromised. That this did not occur, in my view, must be attributed to the late notice given to Ms Siddell of the application.
In my view, if the application had been made sooner, Ms Siddell, through the agency of those advising her would have been able to reach some form of mutual accommodation with Mr Siddell and his legal adviser, through which the documents in question could have been utilised but Ms Siddell’s understandable and legitimate sensitivity to their use accommodated, as ultimately happened on hearing.
Accordingly, in my view, the need for the relevant hearing, before me could have obviated, with a concomitant saving of costs, not only for Ms Siddell but also Mr Siddell. In these circumstances, Mr Mort relies on what was said by Nygh J in Jensen & Jensen [5] in respect of the application of section 117(2)(c), which authorises the court to consider the conduct of a party in respect of proceedings as a circumstance which might properly and justly authorise an award of costs. His Honour said as follows of the section:
It refers to the manner in which each of the parties conducted the proceedings and if as a result of non-cooperation, obstructiveness or otherwise, one of the parties causes the proceedings to be unduly prolonged or made unduly expensive to the other side, clearly an order for costs would be warranted.
[5] Jensen & Jensen (1983) FLC 91-263 at 77,472.
I accept that the late notice of this application has caused the proceedings to have become more expensive than was necessary because the opportunity was lost for the parties to negotiate what was a fairly predictable outcome. In these circumstances, I accept that Ms Siddell has detailed a sufficient circumstance to justify a departure from the normal rule that parties in family law proceedings must bear their own costs and it is just that an order for cost to be made in her favour.
The next issue is what should be the quantum of such an order, bearing in mind the overall circumstances of the case, which include the fact that Mr Siddell obtained the order which he desired. The relevant mechanisms for the calculation of costs are contained in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which came into force on 1 September 2021. Chapter 12 thereof deals with costs.
If the Court determines to make an order for costs, it has a wide discretion as to the calculation of such costs. Pursuant to rule 12.17, it may order costs in a specific amount or to be assessed on a particular basis, including in respect of indemnity costs.[6] It may also direct that costs be calculated pursuant to a methodology prescribed in schedules to the Rules.
[6] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17.
In brief, the schedules concerned enable the calculation of costs on either a party/party basis or by reference to fixed court events. The procedure in respect of the latter methodology is clearly designed to allow the ready calculation of costs, by either the parties themselves or the Court, which have been incurred following the various procedural stages of litigation from filing to finalisation with judgment.
The schedule in question is referenced in the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth), particularly rule 4.01, which provides that in applying Chapter 12, the Court may apply the events based cost system detailed in Schedule 1.
Accordingly, the Court in the present matter may make an award of costs based on fixed fees relating to the preparation of the case up until certain stages or, as the wife advocates, make an award for indemnity costs, the latter approach requiring the application of Part 12.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
If this second approach is adopted, pursuant to rule 12.17(3), amongst other things, the Court may have regard to the reasonableness of each parties’ behaviour in the proceedings concerned and the level of expense sought and whether they are fair, reasonable and proportionate to the matter concerned.
Rule 12.08 provides a list of criteria, for the Court to apply, as to whether costs have been incurred fairly, reasonably and proportionately. Pursuant to rule 12.13(4) a person seeking indemnity costs must provide to the Court a copy of any relevant costs agreement with his/her solicitor.
In my view, it is appropriate that an order be made that Mr Siddell pay one half of Ms Siddell’s costs as sought, being an amount of $2,475.00. For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 9 November 2022
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