Silveira & Gomez
[2022] FedCFamC2F 1233
Federal Circuit and Family Court of Australia
(DIVISION 2)
Silveira & Gomez [2022] FedCFamC2F 1233
File number(s): PAC 3208 of 2007 Judgment of: JUDGE MORLEY Date of judgment: 12 September 2022 Catchwords: FAMILY LAW – parenting – application for costs following hearing on the papers – costs thrown away during proceedings – discussion of being ‘wholly unsuccessful’ in parenting proceedings. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Cases cited: Colan Products Pty Ltd v Luxon Pty Ltd (No. 2) [2002] FMC 90
Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225
Silveira & Gomez [2021] FCCA 1753
In the Marriage of Munday & Bowman (1997) 22 Fam LR 321
JEL v DDF [2001] FamCA 907
Latoudis v Casey (1990) 170 CLR 534
Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157
Penfold v Penfold (1980) 144 CLR 311
Phillips & Hansford [2020] FamCAFC 28
PBF & TRF & Anor [2005] FamCA 158
Sfakianakis & Sfakianakis [2019] FamCAFC 54
Trevi & Trevi (No. 3) [2019] FamCAFC 58
Division: Division 2 Family Law Number of paragraphs: 65 Date of last submission/s: 19 August 2021 Date of hearing: 14 December 2020 Place: Sydney Counsel for the Applicant: Mr Eardley Solicitor for the Applicant: Lavulo Lawyers Counsel for the Respondent: Mr Givney Solicitor for the Respondent: Lama Family Lawyers Solicitor for the Independent Children’s Lawyer: Mr Holmes of Holmes Donnelly & Co Solicitors ORDERS
PAC 3208 of 2007 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SILVEIRA
Applicant
AND: MR GOMEZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MORLEY
DATE OF ORDER:
12 September 2022
THE COURT ORDERS THAT:
1.The Father pay the Mother’s costs thrown away by the adjournment on 19 November 2020 in the sum of $1,000, such payment to be made by the Father to Legal Aid NSW within two months.
2.The Father pay a sum of $2,444.75 to Legal Aid NSW within two months as a contribution to the costs of the ICL in these proceedings.
3.All outstanding applications are 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 a pseudonym Silveira & Gomez has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
The Proceedings.
These reasons relate to issue of costs resulting from parenting proceedings between the Applicant Mother, Ms Silveira (‘the Mother’), the Respondent Father, Mr Gomez (‘the Father’), and the independent children’s lawyer, Mr Holmes.
The proceedings concern parenting arrangements for X, now aged 18 years and Y, now aged 14 years.
Final parenting orders were made on 5 July 2021 following the final hearing on the papers. Full details of the proceedings and the reasons are in Silveira & Gomez [2021] FCCA 1753.
It is relevant to the competing applications for costs that I include paragraph 2 from the aforementioned judgement:
These oral reasons for judgment are in relation to a matter that was heard on a final basis on 11 December 2020 following mentions before the Court on 5 and 19 November 2020. On 5 November 2020, the matter was mentioned after the release of a Family Report in the matter. Orders were made setting it down for a final hearing on 19 November 2020 to be conducted on the papers, as it is known, by consent of all parties. When the matter came to the final hearing on 19 November 2020, the Father had no affidavit material before the Court for the purpose of the final hearing. An Adjournment was sought by the Father’s counsel, Mr Givney, and that was opposed by Mr Holmes, as the Independent Children’s Lawyer, and by Mr Eardley of counsel for the Mother. In the end, directions were made for the filing of further written submissions and an affidavit by each of the Mother and the Father were, in fact, filed and on 14 December 2020 judgment was reserved.
In the event, final orders were made in relation to the contested issues of parental responsibility and any time or communication between the Father and the children in line with the orders sought by the Mother on final hearing, and contrary to the orders sought by the Father.
On 19 November 2020 application was made by Mr Holmes as ICL that the Father and the Mother pay one half of the ICL’s costs of and incidental to the proceedings, such cost being in a fixed sum of $4889.50. Mr Holmes provided a minute of order that included a table setting out the composition of the lump sum of costs sought. Those costs were calculated in accordance with the sums paid by Legal Aid NSW to the ICL pursuant to the grant.
With the final orders made on 5 July 2021 orders were made that any application for costs of the proceedings as between the Mother and the Father being pressed by either of the parties is to be made by way of written submissions and a date set for filing and serving written submissions, with a date also being set for filing and serving of any written submissions in reply. Further orders were made for filing and serving of any written submissions in relation to the application for costs by the ICL and for any written submissions in reply by the ICL.
In the event, written submissions were filed for the Mother on 27 July 2021, prepared by her solicitor, and seeking the following orders:
(1)That the Father pay the entire costs of the Independent children’s lawyer’s costs of and incidental to these proceedings. As submitted by the ICL.
(2)That the Father pay the entire costs of the Mother’s costs as listed below and such cost to be made payable to the Legal Aid of NSW.
(3)The sum of the aforesaid costs order be fixed at $4977.50.
The written submissions included a table setting out the composition of the costs sought by the Mother, being as follows:
a)25/6/18 FDR Mediator Ms B – Mediation Fee attendance $440
b)20/7/18 FDR Mediation attendance $852.50
c)6/2/18 Preparation & Court Attendance on Contravention $770
d)21/8/19 Preparation & Court Attendance Application $495
e)27/11/20 Preparation & Court Application in a Case $1265
f)27/11/20 Court attendance $330
g)22/7/21 Preparation & Court attendance $825
TOTAL $4977.50
The Father filed written submissions on 19 August 2021, prepared by his counsel, Mr Givney, addressing the Mother’s application for costs, but not the ICL’s application.
The Law.
Costs in relation to matters under the Family Law Act 1975 (Cth) are governed by section 117 of the Act, which provides in subsection 117 (1) that the normal position in relation to costs in family law matters is that “each party to proceedings under this Act shall bear his or her own costs.”
Subsection is 117 (2) provides for a departure from the usual rule in subsection 117 (1) as follows:
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) in the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Subsection 117 (2A) provides as follows:
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle proceedings in the terms of any such offer; and
(g) such other matters as the court considers relevant.
Pursuant to section 117(2), a finding by the Court of circumstances that justify the making of a costs order is the necessary preliminary to the making of an order and beyond that there is no additional or special onus on an Applicant for a costs order.
If, having considered the matters referred to in subsection 117(2A) the Court is of the opinion that the circumstances justify a departure from the usual rule that each party bear his and her own costs then the court must determine the quantum of the costs to be awarded.
In Penfold v Penfold (1980) 144 CLR 311 at 315 (per Stephen, Mason, Aickin and Wilson JJ) (‘Penfold’) the High Court discussed section 117 of the Act and said:
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 sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (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.
Sub-section (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 2 provisions which imposes any additional or special onus on an Applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgement under appeal that an order can only be made under s. 117 (2) in “a clear case.
The Court’s discretion in relation to costs is broad and the considerations listed in subsection 117(2A) are not restrictive.[1] There is nothing to prevent any one factor in this subsection being the sole determinant for an order for costs.[2] It is a matter of the weight to be accorded to each factor by the court has no one factor listed in section hundred and 17(2A) prevails over another.[3]
[1] Penfold (1980) 144 CLR 311.
[2] PBF & TRF & Anor [2005] FamCA 158, [41].
[3] Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157.
Costs are compensatory not punitive in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.[4]
[4] Latoudis v Casey (1990) 170 CLR 534.
The Full Court of the Family Court of Australia recently summarised the basic law on costs orders under the Act in Sfakianakis & Sfakianakis [2019] FamCAFC 54:
[9] The ordinary position in proceedings under the Family Law Act 1975 (Cth) (the Act) is that each party is to bear his or her own costs (s 117(1)). Where the Court is of the opinion that circumstances justify it in doing so, the Court may make such order as to costs as it considers just (s 117(2)). Thus, an order may be made for the payment of costs on an indemnity basis, although such orders are exceptional (In the Marriage of L and C L Kohan (1992) 16 Fam LR 245 at 259; (1993) FLC 92-340 at 79,614; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCa 1178; D and D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64).
[10] It is, however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words “such order as to costs … as the court considers just” permit the Court to fashion an (2019) 59 Fam LR 419 [2019] FAMCAFC 54 at 421 order that is apt to the circumstances. One such well-known example is assessment on a trustee basis, which is more generous than party and party costs, but falls short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party costs nor an indemnity costs order. For convenience, in these reasons we shall refer to such orders as a “special costs order”.
[11] Decisions as to the appropriate basis for any costs order are, of course, guided by principle. In applications under s 117 of the Act for costs of whatever kind, the Court must have regard to the considerations set out in s 117(2A). Paragraph (g) requires the Court to take into account any relevant matter.
[12] As the decision in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233–4; 118 ALR 248 at 256–7; 28 IPR 561 at 569–70 (Colgate-Palmolive) and the extensive authorities referred to in it make clear, the categories for the making of special costs orders are not closed and may be made whenever the particular facts and circumstances warrant it. That position is reflected in s 117(2) of the Act.
[13] It is necessary to consider first whether there should be an order for costs before turning to whether the quantum of the costs should be left to the application of the scale contained within Sch 3 of the Rules or assessed or fixed on some other basis.
…
[40] … the Court is not bound only to make an order on a party and party basis or on an indemnity basis. It may take an intermediate course if that is the order that is just in all of the circumstances. A special costs order may be assessed by reference to a particular period of time or set of events. Alternatively, the Court may fix a sum for costs that exceeds party and party costs but falls short of an indemnity.
Offers of settlement are an important section 117(2A) consideration in determining the question of costs. Section 117(2A)(f) requires the court to consider any offer in writing to settle the proceedings and the terms of any such offer.[5]
[5] Trevi & Trevi (No. 3) [2019] FamCAFC 58.
In Browne & Green [2002] FamCA 791 at [57] the Full Court said:
We think that whilst s 117 (2A) does not provide any direct guidance to where weight should be given in any one particular case, it is very important for the court to give proper consideration to written offers of settlement that have been made. The insertion of s 117C into the legislation is a clear indication of the desire of Parliament to enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it proper consideration, is something to which very significant weight indeed normally to be given …
Rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) provides:
12.13 Order for costs
(1) The court may make an order for costs on its own initiative.
(2) A party may apply for an order that another person pay costs.
(3) An application for costs may be made:
(a) at any stage during a proceeding; or
(b) by filing an Application in a Proceeding within 28 days after the final order is made.
(4) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement or costs agreements in relation to those costs and, if so, the terms of the costs agreement or costs agreements.
(5) In making an order for costs in a proceeding, the court may set a time for payment of the costs, which may be before the proceeding is concluded.
Rule 12.17 to 12.19 of the Rules provide:
12.17 Method of calculation of costs
(1) The court may order that a party is entitled to costs:
(a) of a specific amount; or
(b) as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c) to be calculated in accordance with the method stated in the order; or
(d) for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
(2) If costs are payable under the Family Law Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party and party basis.
(3) In making an order under subrule (1), the court may consider the following:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c) the rates ordinarily payable to lawyers in comparable proceedings;
(d) whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e) the time properly spent on the proceeding, or in complying with pre‑action procedures;
(f) whether expenses (paid or payable) are fair, reasonable and proportionate.
12.18 Maximum amount of party and party costs recoverable
(1) This rule sets out the maximum amount of party and party costs a person may recover:
(a) if the court orders that costs are to be paid and does not fix the amount by means of a maximum costs order made under rule 12.10 or otherwise; and
(b) if a person is entitled to costs under these Rules.
(2) The maximum amount of costs that a person may recover under this rule is as follows:
(a) for fees—an amount calculated in accordance with Schedules 2 and 3;
(b) for an expense referred to in Schedule 2 (other than item 101 of Part 1)—the amount specified in that Schedule for that expense;
(c) for any other expenses—a reasonable amount.
12.19 Interest on outstanding costs
Interest is payable on outstanding costs at the rate referred to in rule 10.17.
I note the provisions of Rule 4.01 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth):
4.01 Costs in family law and child support matters
(1) In applying Chapter 12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in relation to family law or child support proceedings, the Court may apply the scale of costs in Schedule 3 to those Rules or the scale of costs in Schedule 1 to these Rules.
(2) In item 12 of the table in Schedule 1 to these Rules:
(a) the reference to rule 11.15 is a reference to rule 11.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as that rule applies because of rule 2.01 of these Rules; and
(b) the reference to rule 11.34 is a reference to rule 11.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as that rule applies because of rule 2.01 of these Rules.
It was established by the decision of Raphael FM (as His Honour then was) in Colan Products Pty Ltd v Luxon Pty Ltd (No. 2) [2002] FMC 90 that, when applying the scale provided by the then-operational Federal Circuit Court Rules 2001 (Cth), counsel’s fees are not claimable as a disbursement and what is to be claimed is the advocacy loading on the daily hearing fee. That is applicable in this matter as what is sought by way of costs on behalf of the Applicant Mother is the cost of attendance before the court by counsel to conduct an interim hearing.
In Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225, Sheppard J provided some examples of circumstances that might warrant the exercise of discretion to award indemnity costs and in In the Marriage of Munday & Bowman (1997) 22 Fam LR 321, at 322 Holden CJ drew from his Honour’s decision the following:
(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397;
(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra);
(c) Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd (unreported, Federal Court, 3 May 1991)). 2015] FamCAFC 157 Reasons Page 7
(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993)).
(e) An imprudent refusal of an offer to compromise.
In relation to indemnity costs, in Phillips & Hansford [2020] FamCAFC 28 the Full Court said:
[35] Indemnity cost orders are made only in exceptional cases (Kohan and Kohan (1993) FLC 92-340; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No. 2) (2010) FLC 93-435).
[36] Whilst the categories of cases in which indemnity cost orders may be awarded are not closed, it is accepted that such costs may be ordered where a case was pursued with “wilful disregard of known facts or clearly established law” and where there has been “an imprudent refusal of an offer to compromise” (Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233).
[37] In relation to the first category, it has been said that indemnity costs may be awarded where “the Applicant, properly advised, should have known that he had no chance of success” (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401) and where “a party persists in what should on proper consideration be seen to be a hopeless case” (J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers – Western Australian Branch & Anor [1993] FCA 70 per French J at 5).
Specifically in relation to offers of settlement, in Trevi & Trevi (No. 3) [2019] FamCAFC 28 the Full Court said at [15]:
… failure to accept an offer which in retrospect should have been accepted does not necessarily justify an order for costs on an indemnity basis.
I also have had regard to JEL v DDF [2001] FamCA 907.
Consideration.
In the written submissions on behalf of the Mother, paragraph 2 sets out the orders as to costs and the calculation of quantum as set out earlier in these reasons. Paragraphs 3 to 19 inclusive set out submissions as to the law, including in relation to indemnity costs, which is why I have included mention of the relevant law on indemnity costs in these reasons.
In paragraph 21 the Mother submits that:
… the agreed position was that the matter was to be dealt with conveniently by way of short oral submissions at the hearing date 19/11/20. On the hearing date the Respondent through his Barrister made an application for adjournment and in our submission was not made with the best interests of the children in mind. He adjournment was not agreed to by the Applicant.
That submission relates only to the costs relevant to 19 November 2020.
In paragraphs 22 and 23 the Mother submits that submission was made, at some time, that the views of the children needed to be respected and that the Father continued to disregard the children’s views, and that the Father:
… properly advised, should have known that he had no chance of success and above all should not have prolonged the matter by seeking an adjournment on the listed hearing date. The Respondent persisted in this matter in what should on proper consideration be seen to be a hopeless case.
Those submissions would seem to be directed more toward quantum of costs, in seeking that if the Court considers that there are circumstances that justify the making of a costs order, such costs order should be on an indemnity basis.
However, I will consider the submissions for the double purpose of whether or not a costs order should be made and, if so, the issue of quantum of costs.
No particular submissions are found in the Mother’s submissions relating to any of the dates referred to in the table setting out the items that make up the total costs sought by the Mother. Examination of the Court file and the Court’s Casetrack system does not assist with linking any of the dates stated by the Mother to events before the court or significant in the proceedings.
There is no submission as to why costs against the Father should be awarded in relation to a family dispute resolution mediation, or in relation to a contravention application. The item for 27 November 2020 refers to a “Court attendance”, but there was no court attendance on that day. The same is true for 22 July 2021.
The written submissions for the Father in opposition to the Mother’s application for costs point out that items (a) to (e) of the costs sought by the Mother:
… do not appear to have a connection with the orders made on 5 July 2021 and even if they do the court would with respect have difficulties making an order for costs in respect of those attendances.
One of the difficulties with those items, as I have already mentioned, is that the Court has no idea what attendances they refer to, as they do not correspond to any attendances before the Court and they cannot be linked to any particular part of the proceedings with sufficient clarity to consider submissions and then the relevant matters under section 117.
In the Father’s written submissions, Mr Givney points to the difficulty in responding to the Mother’s application for costs when the submissions on behalf of the Mother are not grounded in the considerations for the Court set out in section 117(2A). He infers that the application is brought on the basis that:
… the Court found favour of the Mother’s Application and/or the Father was wholly unsuccessful.
In relation to the Mother’s application that the Father pay her costs in the sum of $4,977.50, composed as indicated in the table in the written submissions, and repeated earlier in these Reasons, I can only consider the relevant matters under section 117(2A).
I do not have sufficient detail in relation to the financial circumstances of either of the parties to make any proper assessment of its bearing on the costs application. The Mother is employed as an educator and the Father is a “director”. Accordingly, both would appear to have an income.
The Mother was in receipt of a grant of Legal Aid, but the terms of the grant of that assistance to the Mother are not before the Court.
In relation to the conduct of the parties to the proceedings, the only element of conduct that I am aware of that would have relevance to a costs application is the Father’s application for an adjournment of the final hearing on the papers on 19 November 2020 on the basis that he had not filed affidavit material for the hearing and that he sought to do so. That adjournment was opposed by the ICL and by counsel on behalf of the Mother, but was ultimately granted by the Court.
The Father filed an affidavit and the matter was considered on the papers in Chambers, leading after an inordinate delay to the making of final orders.
However, the Mother has not sought costs for the appearance before the Court by her counsel and instructing solicitor on 19 November 2020. Had she done so, the ‘costs thrown away’ in consequence of the adjournment being granted would have been the extra work done by her legal advisers thereafter in perusing the Father’s affidavit, preparation and attendances necessary for the filing of the Mother’s subsequent affidavit and the alterations by way of addition to the Mothers case outline document that had been submitted prior to 19 November 2020 in anticipation of final hearing on that day. But I have no detail of that work.
I can infer that the extra costs incurred by the Mother for legal work consequent upon the adjournment of the final hearing on 19 November 2021 are included in the items at (e) and (f) of the table of costs sought in the Mothers written submissions, on the assumption that all of the costs in that table relate to lump-sum grants for stages pursuant to the Mothers grant of legal aid.
The proceedings were not necessitated by the failure of the Father to comply with the previous order of the Court, but, to the contrary, were necessitated by the Mother’s failure to comply the previous order of the Court. I hasten to say that that statement is by no means an accusation or condemnation of the Mother whatsoever, as my Reasons of 5 July 2021 make plain.
The Father was wholly unsuccessful in the proceedings in relation to the matters that were in issue (parental responsibility and the children spending time with and/or communicating with him). However, given the history of parenting proceedings between the parties from the original orders on 2 November 2007 in Suburb C Local Court, through a number of sets of orders to another set of final orders in the Federal Circuit Court of Australia on 13 December 2017, then on to a contravention Application that did not proceed and so to the final orders made by me on the papers on 5 July 2021, I cannot find that the Father’s course in seeking to pursue a relationship with his two children was unreasonably taken from the outset or pursued with blind disregard to certain failure.
As Mr Givney of Counsel points out in his written submissions, parenting proceedings should not be seen in terms of a winner and a loser. The Court’s obligation in parenting proceedings is to determine what orders are proper to be made in the best interests of the children, with the children’s interests as the paramount consideration.
The fact that final orders are made virtually in the terms sought by one of the parties and therefore contrary to the terms sought by the other party cannot simply of itself lead to a conclusion that the unsuccessful party has pursued the proceedings in blind disregard of an inevitable outcome.
Parenting proceedings are not like a contest on breach-of-contract, a personal injury’s case or a criminal prosecution. They are rarely if ever “black-and-white”, being in almost every case that goes to final hearing awash in shades of grey.
I have no evidence of any offers in writing.
I do not find that there are any circumstances in the course of these proceedings that justify a costs order being made in favour of the Mother for the whole of the proceedings and associated family dispute resolution mediation. I find that there are circumstances that justify the making of a costs order relating to the final hearing not proceeding to a conclusion on 19 November 2020, being in relation to the extra legal work then required be undertaken on the Mother’s behalf in relation to the Father’s affidavit and the Mother’s affidavit filed thereafter and alteration to the Mother’s Case Outline document prepared by her solicitor.
Having found that there are circumstances that justify the making of a costs order, I must assess the quantum.
The Mother’s itemised table of costs sought does not assist.
I will set the quantum of costs to be paid by the Father to the Mother at a lump sum of $1000.
I will make an order that the Father pay the Mother’s costs thrown away by the adjournment on 19 November 2020 in the sum of $1000, such payment to be made by the Father to Legal Aid NSW within two months.
The ICL’s application for costs.
Though an Independent Children’s Lawyer is not a party to proceedings and subsection 117(1) refers to “each party to proceedings under this Act” in setting out the general rule, subsection 117(2) does not confined itself to a party or parties but provides that, if in proceedings under the Act, the Court is of the opinion that there are circumstances that justified in doing so, the Court may, subject to certain other subsections, make such order as to costs as the Court considers just.
Subsection 117(3) makes explicit that the Court may make an order under subsection (2) for parties to the proceedings to pay all or part of the costs of the Independent Children’s Lawyer, and subsection 117(5) provides that in considering questions of costs in relation to an Independent Children’s Lawyer, the Court must disregard the fact that the Independent Children’s Lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory Law or approved by the Attorney-General.
The quantum of costs sought by Mr Holmes as ICL is set out in his minute as $4889.50. Mr Holmes made his submissions in relation to costs on 19 November 2020.
In relation to the Mother, no order that she pay any of the ICL’s costs will be made in consequence of subsection 117(4), which provides that in proceedings in which an Independent Children’s Lawyer for a child has been appointed, if a party to the proceedings has received legal aid in respect of the proceedings, the Court must not make an order under subsection (2) against that party in relation to the costs of the Independent Children’s Lawyer.
In relation to the Father, I am satisfied from the simple evidence of his occupation as a director that he has income and means to pay. I find that such parties as have means to pay and in relation to whom there is no statutory bar should contribute to the costs of the Independent Children’s Lawyer.
In keeping with the findings I made earlier in these proceedings in relation to the considerations in subsection 117(2A) on “conduct in the proceedings” and “wholly unsuccessful”, I do not consider it appropriate that the Father pay the whole of the costs claimed by the Independent Children’s Lawyer, but I do find it is appropriate that the Father pay half of the costs claimed by the Independent Children’s Lawyer.
As the costs claimed in total are $4889.50 I will make an order that the Father within two months pay a sum of $2444.75 to Legal Aid NSW as a contribution to the costs of the Independent Children’s Lawyer in these proceedings.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 12 September 2022
0
16
0