SITCH & JACOBS (No.2)
[2014] FCCA 1537
•21 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SITCH & JACOBS (No.2) | [2014] FCCA 1537 |
| Catchwords: COSTS – Family law proceedings – parenting orders – consideration of factors in relation to costs. |
| Legislation: Family Law Act 1975 (Cth), s.117 |
| Campion & Campion [2008] FMCAfam 677 In the Marriage of AR and DJ Telfer (1996) 20 Fam LR 619 Penfold v Penfold (1980) 144 CLR 311 |
| Applicant: | MS SITCH |
| Respondent: | MR JACOBS |
| File Number: | MLC 10230 of 2009 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 8 May 2014 |
| Date of Last Submission: | 8 May 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 21 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Weerappah |
| Solicitors for the Applicant: | Bayside Solicitors |
| For the Respondent: | In person |
ORDERS
That the respondent pay the applicant’s costs thrown away of 29 August 2013 in the sum of $1384 by 21 October 2014.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Lucev delivered this day will for all publication and reporting purposes be referred to as Sitch & Jacobs (No.2).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10230 of 2009
| MS SITCH |
Applicant
And
| MR JACOBS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7 March 2014 the Court delivered judgment on the primary issues in dispute in these proceedings.[1]
[1] Sitch & Jacobs [2014] FCCA 1419 (“Sitch (No.1)”).
The Mother had sought orders that:
a)the Mother and Father have equal shared parental responsibility for the Child;
b)the Child live with the Mother;
c)the Child spend time with the Father each alternate weekend, on Wednesday of each alternate week, and for half of the school holidays, and the usual special days, and by telephone at reasonable times;
d)that changeovers occur at the [omitted] train station, when not occurring at school;
e)there be restraints in relation to bathing or showering with the Child, denigration of the other parent or their family, and being under the influence of alcohol;
f)authorisation for each parent to communicate with medical practitioners, school and to attend school functions, and to advise of any serious illness; and
g)the Child attend school unless he has a certificated medical illness.
The Father had sought orders for:
a)sole parental responsibility for the Child;
b)the Child to live with the Father and spend time with the Mother on alternate weekends, holidays and special days, and by telephone;
c)various orders with respect to restraining the Mother in relation to medical and quasi-medical examinations;
d)the usual restraint type provisions with respect to discussion of the proceedings and notification of any illness or injury suffered by the Child; and
e)an order restraining the Mother from instituting proceedings without leave of a Judge of the Court first had and obtained.
In Sitch (No.1) the Court made orders that:
(1) That the child of the marriage, [X], born [in] 2004, live with the Mother.
(2) That the Mother and Father share equal parental responsibility for the Child.
(3) That the Child spend time with and communicate with his Father as follows:
(a) on each alternate weekend from Friday at the conclusion of school until the following Monday at the commencement of school;
(b) on each Wednesday from the conclusion of school until the commencement of school on Thursday;
(c) during school term holidays for one half as agreed, but failing agreement from school breakup until 5.00pm on the second Saturday of the holidays;
(d) during summer holidays for one half at a time agreed, but failing agreement in the first half in 2014/15 and each alternate year thereafter, and the second half in 2015/16 and each alternate year thereafter;
(e) from 24 December 2014 at 4.00pm until 25 December 2014 at 4.00pm and each alternate year thereafter and from 25 December 2015 at 4.00pm until 26 December 2015 at 4.00pm and each alternate year thereafter;
(f) on Father’s Day weekend from Saturday at 5.00pm until the following Monday at the commencement of school, and in the event that the Father’s time with the Child pursuant to these orders occurs on the Mother’s Day weekend, then his time shall be suspended on that weekend from Saturday at 5.00pm.
(g) on the Child’s birthday as follows:
(i) on a school day from school breakup until 7.00pm, the Father to collect the Child from the school and return to the outside of the Mother’s home;
(ii) on a non-school day from 1.00pm until 6.00pm, the Father to collect and return the Child from and to the outside of the Mother’s home, and in the event the Child is otherwise in the Father’s care on the non-school day pursuant to these orders, he shall be returned to the Mother from 1.00pm until 6.00pm on that day;
(iii) at such other times as maybe agreed upon in writing.
(4) The Child may communicate with the Father and Mother by telephone or electronic means of communication at any time.
(5) The Father shall by these orders be authorised to receive from the Child’s school a copy of all printed material, including photos, at his expense if any, which the school produces for release to parents in relation to the Child’s social and academic progress.
(6) The Father be at liberty to attend all school functions which parents are at liberty to attend including school concerts, school sporting events and parent teacher meetings.
(7) The Father and Mother be restrained from permitting the Child to be interviewed or examined by any psychologist, counsellor or medical practitioner in relation to any allegations of abuse concerning the Child, save for where the interview or examination occurs by mutual written agreement of both parents or by order of the Court, except in an emergency.
(8) The Father and Mother, their servants and agents, including members of their family or their partner, be restrained from:
a) discussing these proceedings or any affidavits or reports which form part of these proceedings with the Child or within his hearing;
b) denigrating, insulting or abusing the other parent or any member of their family or their partner, to the Child or within his hearing.
(9) Except where otherwise specified in these orders, changeover shall be at [address omitted], outside of the front entrance.
(10) All extant proceedings be dismissed.
(11) The appointment of the Independent Children’s Lawyer be discharged.
(12) The provisions of ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) apply hereto.
(13) Certificate for Counsel.
(14) If either party seeks costs, then written submissions should be filed within 14 days, and any written reply to those submissions within a further 7 days, and the issue of costs will be determined by the Court on the papers.
Order (3) of the above orders was amended on 17 March 2014 to include the following sub-paragraphs (a) and (b) (with other sub-paragraphs consequentially relettered):
(a)on each alternate weekend from Friday 45 minutes after the conclusion of school until the following Monday 45 minutes before the commencement of school;
(b)on each Wednesday 45 minutes after the conclusion of school until 45 minutes before the commencement of school on Thursday;
Essentially, final orders were made in terms sought by the Mother, save principally that:
a)the Child spends one night per week with the Father rather than every alternate week as proposed by the Mother; and
b)the place of changeover is closer to the Father’s residence than that sought by the Mother.
The Father was less “successful” in relation to the orders he sought, and in particular was not successful in relation to his seeking orders that:
a)he have sole parental responsibility for the Child; and
b)the Child live with the Father and spend time with the Mother.
Costs
Pursuant to the 7 March 2014 orders the Mother sought costs.
The power to award costs in family law proceedings derives from s.117 of the Family Law Act 1975 (Cth).[2] Section 117 of the FL Act relevantly provides as follows:
[2] “FL Act”.
(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) and (5) and 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.
(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 the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The law concerning costs in family law proceedings was succinctly summarised in RNL & RHB,[3] as follows:
The question of costs in family law proceedings is dealt with in s.117 of the Family Law Act. A judicial officer has a broad discretion in costs matters, and the Full Court has indicated that it will not ordinarily intervene unless the order is plainly unreasonable. Indeed, it has been held that the Court has an almost unlimited jurisdiction in relation to costs, although any costs orders must be just.
It is not the law that a costs order can only be made in “a clear case”. Thus, although a finding of justifying circumstances is an essential preliminary to the making of a costs order, there is no additional or special onus on an applicant for an order for costs. Although the general rule is that each party shall bear his or her own costs, that general rule is expressed to be subject to s.117(2)
and must yield whenever the judicial officer finds that there are circumstances justifying the making of the costs order.[4]
[3] [2005] FMCAfam 520 (“RNL”).
[4] RNL at paras.169 and 170 per Walters FM. The view of s.117(1) and (2) of the FL Act set out in RNL is in large part drawn from the discussion in the majority decision in Penfold v Penfold (1980) 144 CLR 311 at 315 per Stephen, Mason, Aickin and Wilson JJ; with Murphy J expressing a similar view at 317; followed in Re JJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 191 per Gummow J; [1998] HCA 44 at para.11 per Gummow J, and see CLR at 219 per Hayne J and 225 per Callinan J, HCA at paras.91-92 per Hayne J and para.125 per Callinan J (“JJT”).
In JJT s.117(2A) of the FL Act was commented on by a number of the Justices of the High Court with Kirby J (albeit in dissent) saying that s.117(2A) of the FL Act:
express[ed] criteria to which the Court must have regard in considering what order (if any) it should make under s.117(2). All but one of the paragraphs of sub-s. (2A) relate to the circumstances of a party. However, the closing paragraph, par. (g) is expressed in the most ample terms[5]
and Hayne J saying that:
The list of matters set out in sub-s. (2A) to which the Family Court is directed to have regard in making orders under s.117(2) indicates clearly that the subject matter of the orders to be made under s.117(2) is the costs which a person may be ordered to pay another as indemnity for that other’s liability for professional fees and out of pocket expenses reasonably incurred in the litigation, that is, “costs” as that expression is ordinarily understood in the law[6]
with Callinan J saying that:
Subsection 117(2A) provides a catalogue of the matters to which the Family Court may have regard if an order different from that contemplated by s.117(1) is to be made. All of these matters, except for the last, are matters expressly concerned with the conduct and circumstances of the parties. The last could hardly however, be expressed in wider terms.[7]
[5] JJT CLR at 198 per Kirby J; HCA at para.37 per Kirby J.
[6] JJT CLR at 220 per Hayne J; HCA at para.98 per Hayne J.
[7] JJT CLR at 225 per Callinan J; HCA at para.126 per Callinan J.
Costs – consideration of factors
In determining whether to order costs the Court must consider, weigh and balance the relevant factors under s.117(2A) of the FL Act.[8] In so doing, the Court may make an order on the basis of one or a combination of factors.[9]
Section 117(2A)(a) of the FL Act – financial circumstances of each party
[8] JTT; In the Marriage of I and I (No. 2) (1995) 22 Fam LR 557 at 558 per Nicholson CJ, Ellis and Buckley JJ.
[9] In the Marriage of SH and P Brown (1998) 23 Fam LR 349 at 353 per Kay J, referred to in C & C (No.2) [2007] FMCAfam 54 at para.12 per Pascoe CFM (“C & C (No.2)”).
The Mother:
a)was in full home time duties and in receipt of a Centrelink parenting pension which was her only source of income; and
b)in the proceedings she was the recipient of a grant of legal aid, funding the trial at $1384 a day.
The Father:
a)owns a house;
b)is a [occupation omitted]; and
c)is living with a partner who holds down three jobs.
In all of the circumstance it is apparent that the respondent Father’s financial position is better than the applicant Mother’s, but it is by no means clear on the relatively limited evidence available that the respondent Father’s financial position is anything other than ordinary, or that of a relatively average wage earner, or that he has a particularly significant financial advantage over the Mother. To the extent that the Father’s current partner might earn additional income from having three jobs it is not apparent that the Father enjoys any particular financial benefit as such from any additional income earned by his current partner.
This factor might be said to marginally fall in favour of a costs order in favour of the Mother, but in the Court’s view it is ultimately a factor of little weight in these proceedings.
Section 117(2A)(b) of the FL Act – legal aid assistance
The Mother was legally aided in relation to the first two days of the hearing, at the rate of $1384 per day. The Father was not legally aided for the proceedings.
The Mother being granted legal aid is not an impediment to the making of a costs order in her favour. It is but one factor to be considered.
In PJ & NW[10] the mother was legally aided, whilst the father was a pensioner with significant debts.[11] The father was wholly unsuccessful in the proceedings, which were appeal proceedings.[12] The father’s appeal was said to have little merit, being directed to matters of weight given to evidence in a discretionary judgment.[13] The father was ordered to pay the mother’s costs.[14]
[10] [2005] FamCA 162 (“PJ & NW”).
[11] PJ & NW at paras.57-58 per Bryant CJ, Holden and May JJ.
[12] PJ & NW at para.62 per Bryant CJ, Holden and May JJ.
[13] PJ & NW at para.62 per Bryant CJ, Holden and May JJ.
[14] PJ & NW at para.63 per Bryant CJ, Holden and May JJ.
The fact that a person is in receipt of legal aid “is not by itself a barrier to the award of costs” and to “refuse to make an order for costs on the sole ground that a party is legally aided would be a gross injustice to the party”.[15] Although said in circumstances where the Family Court ordered a wife in receipt of legal aid to pay a husband’s costs,[16] the principle expounded is equally applicable where a party in receipt of legal aid seeks a costs order in its favour.
[15] In the Marriage of Schwarz (1985) 10 Fam LR 235 at 239 per Barblett, Bell and Ngyh JJ (“Schwarz”).
[16] Schwarz at 239 per Barblett, Bell and Ngyh JJ.
Any costs awarded to the Mother will effectively be offset against, and therefore reduce the amount of, legal aid payable. In those circumstances if the Court comes to the view, having regard to other factors under s.117(2A) of the FL Act, that the Father ought to pay the Mother’s costs, or some portion of them, then this factor would fall in favour of an order for the Father to pay those costs, especially because it transfers liability from the taxpayer to the party that caused those costs to be incurred.
Section 117(2A)(c) of the FL Act – the conduct of the parties to the proceedings
In considering the conduct of the parties to “the proceedings” the Court is limited to their conduct in these proceedings.
The hearing was listed in December 2012 by order of Judge Burchardt for a two day hearing in July 2013, and was subsequently adjourned on 30 July 2013 to a hearing on 28 and 29 August 2013 by further order of Judge Burchardt.
On the second day of the proceedings on 29 August 2013, and without any apparent pre-warning to the Mother, the Independent Children’s Lawyer or the Court, the Father advised that he had terminated the services of his Counsel and his solicitor on the basis that he could not afford to fund them for the listed second day of the hearing, and sought an adjournment to seek further funding for legal representation or to enable the Father to properly prepare himself to conduct the hearing as a self-represented litigant. The Court granted the Father’s application for adjournment, and made an order for the parties’ costs thrown away to be reserved.
The adjournment having been granted, the Father represented himself when the proceedings re-commenced on 26 September 2013 and continued on 27 and 30 September 2013.
The Mother submits that the Father could have competently continued with the proceedings on the listed hearing date of 29 August 2013 had he a mind to do so. The Mother submits that her costs of $1384 were thrown away on that date.
The Mother also submits that the case was delayed by at least a day, and perhaps two, by the Father’s actions in having the case adjourned on 29 August 2013, and that in all the circumstances the Mother is entitled to:
a)a costs order in her favour of $1384 for the costs thrown away on 29 August 2013; or
b)in the alternative, a costs order in the sum of $6,920 being the costs incurred for the hearing of each day with such costs to be remitted by the respondent Father to the Mother’s solicitors for on-accounting and sending to Victoria Legal Aid.
One difficulty with the Mother’s submission concerning the adjournment on 29 August 2013 is that the Court made a considered judgment that an adjournment was warranted because the Father was not properly able to represent himself on that day, and that it would be unfair to make him continue on that day. That judgment took into account the fact that the Father went into a two day hearing with Counsel and solicitors, and then terminated their retainer after the first day on the basis that he was unable to afford to have them appear for the second day. That issue must now, however, also be taken into account in determining the issue of costs, particularly the Mother’s costs thrown away by reason of the adjournment.
The Court must also balance the fact that this was a hearing which was originally listed for 30 and 31 July 2013, adjourned on 30 July 2013 to a hearing on 28 and 29 August 2013, having originally been listed for the July dates in December 2012. The Father asserted that he had, effectively, run out of money between the dates originally listed for hearing in July 2013 and the dates subsequently listed for hearing in August 2013. Whilst there was no evidence on the matter, the Court can understand that that might happen. There was no evidence from the Father to explain, with any degree of precision, the financial circumstances in which he found himself on 28 and 29 August 2013. If the Father knew that he did not have funds for a two day hearing as at, or before, 28 August 2013, or reasonably suspected that that might be the case, that matter should have been raised at the outset, or before the hearing, not one day into a listed two day hearing, which then had to be adjourned as the Court considered it unfair that the Father have to represent himself in the circumstances.
In P & R (No.1)[17] an applicant who had been represented previously by her son applied for an adjournment so that she could obtain legal representation. The application for an adjournment was granted on the basis that the applicant would be unfairly prejudiced if compelled to present her own case on the day of the hearing, bearing in mind that “she had a reasonable expectation that leave would be granted” for her son to appear, but leave was refused.[18] An application for costs by the respondent was successful on the basis that the respondent had incurred legal costs in anticipation of a hearing, and by reason of the adjournment those costs were thrown away and the respondent was thereby prejudiced.[19]
[17] [2002] FMCAfam 65 (“P & R (No.1)”).
[18] P & R (No.1) at paras.11 and 12 per Driver FM.
[19] P & R (No.1) at para.13 per Driver FM.
In Campion & Campion[20] the husband was ordered to pay the wife’s costs thrown away of proceedings on a day when the husband was not ready to proceed with a listed final hearing, and where the husband had not put his former solicitors into funds at the appropriate time, and the matter was adjourned to enable him to obtain legal assistance.[21]
[20] [2008] FMCAfam 677 (“Campion”).
[21] Campion at paras.97-102 per Riley FM.
Both parties knew that the matter was listed for a two day hearing on 28 and 29 August 2013, and the Mother has incurred legal costs in anticipation of the second day of that hearing. There is no doubt that the Mother is prejudiced by having to bear costs thrown away by reason of the adjournment of the second day of the listed hearing on 29 August 2013. There will therefore be an order that the Father pay the Mother’s costs thrown away of 29 August 2013 in the sum of $1384.
In relation to the costs of the further three days of hearing, the Mother suggests that she ought to have her costs of those days as well. The Court can see no basis for this submission. It seems tolerably clear that the original estimate of two days was an under-estimate of such a difficult and complex case. Furthermore, the additional days were days which were simply necessary to get through the evidence and make submissions. There was nothing in the Father’s conduct of the hearing during the time that he represented himself which the Court, within the usual degrees of latitude given to a self-represented party, can criticise. In fact, the Father’s handling of the case was, by and large, entirely proper during the three further days of hearing on which he appeared on his own behalf. In those circumstances, there is nothing in the conduct of the Father in relation to the additional days of hearing which would weigh in favour of a costs order against him in relation to those days.
Save for the conduct of the Father in relation to the second day of the hearing on 29 August 2013, which is a matter dealt with above, the conduct of the parties was not conduct which in the Court’s view should give rise to costs consequence. As the Court observed in Sitch (No.1) this was “a difficult, complex and finely balanced case.”[22] The parties’ conduct in the proceedings and generally in the hearing was not such as to warrant costs consequences flowing from them.
[22] Sitch (No.1) at para.1 per Judge Lucev.
The Court notes that the Mother pointed to the Father’s over-holding of the Child, and the Mother’s making of a recovery order subsequent thereto, but insofar as that conduct falls within the rubric of “conduct of the parties in relation to the proceedings” the Court notes what was said in Sitch (No.1), as follows:
48.The Father failed to comply with the orders in this matter in July 2013 at the time that he raised allegations of potential self-harm by the Child. In this regard the Father pre-empted the making of orders by the Court, but says that he did so out of concern with respect to the Child’s potentially self-harming. The Father withheld the Child from school and involved DHS as a consequence of the Child’s alleging self-harm. On the evidence, however, the Father significantly overreacted, as there was no particular evidence of potential self-harm by the Child.[23]
16.The Court believes that the self-harm incident occurred in the manner described by the Father and the Father’s Current Partner. The incident is, in the Court’s view, open to a variety of interpretations. The Father and his partner appear to have adopted the worst possible interpretation of the self-harm incident. It is easy to be critical, in hindsight, of the Father and the Father’s Current Partner adopting such an interpretation. And, it is only with the benefit of hindsight, that a judgment can be made that they did in fact overreact to the self-harm incident.[24]
[23] Sitch (No.1) at para.48 per Judge Lucev.
[24] Sitch (No.1) at para.16 per Judge Lucev.
The Court does not consider that the Father ought to bear the costs consequences of the application for a recovery order by the Mother in circumstances where the Father’s over-holding conduct was a consequence of a misjudgement and overreaction in the difficult circumstances of this case, and where there can be no doubt that the Father’s actions were, in any event, notwithstanding the misjudgement and overreaction, thought by him to be in the best interests of the Child.
Section 117(2A)(d) of the FL Act – failure to comply with previous orders
It cannot be said that the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court. This factor therefore is not a relevant factor in the present circumstances.
Section 117(2A)(e) of the FL Act – whether any party wholly unsuccessful in the proceedings
As the Court observed in Sitch (No.1) this was a case which was “finely balanced”.[25] There were difficult and complex circumstances which, in the best interests of the Child, required resolution by way of judicial determination. In the Court’s view, whichever party might have been characterised as being “unsuccessful” dependent on the outcome of the hearing, the proceedings were necessary to resolve intractable issues between the parties. In those circumstances, even if one or other of the parties here had truly been “wholly unsuccessful in the proceedings” the Court would not have considered this to be a factor which weighed in favour of any costs order in respect of any party in the proceedings. In any event, for reasons set out below, it cannot be said, as suggested by the Mother, that the Father was “wholly unsuccessful in the proceedings”.
[25] Sitch (No.1) at para.1 per Judge Lucev.
The Father was unsuccessful in seeking sole parental responsibility and that the Child live with him. The Mother was unsuccessful in obtaining an order that all of the Child’s absences from school be the subject of a certificated medical illness. Otherwise, with minor adjustments the status quo had been determined as being appropriate in the best interests of the Child. Those minor adjustments included additional time with the Father each week, a place of changeover closer to the Father than that sought by the Mother, and some adjustments to the restraints sought by both the Father and Mother.
It cannot therefore be said that in these proceedings the Father was wholly unsuccessful. This factor does not weigh in favour of a costs order against the Father.
Section 117(2A)(f) of the FL Act – offers
The Mother submitted that on filing her amended initiating application on 8 July 2013 the Mother demonstrated an offer to settle the matter by maintaining the status quo.
Section 117(2A)(f) of the FL Act refers to “an offer in writing to the other party to the proceedings to settle the proceedings”. In In the Marriage of RT & AR Harris[26] the Full Court of the Family Court dismissed an appeal in relation to costs where the Family Court at first instance had considered that the minutes of proposed orders filed by a party in those proceedings constituted an offer to settle.[27] The Full Court of the Family Court in dismissing the appeal and finding that “in the circumstances of this case the trial judge was within the limits of the proper exercise of his discretion”[28] also observed that:
We do not wish to be taken as endorsing the view that where a party recovers that which he or she seeks by way of property settlement in an application or in any other documents such as, for instance, the minute in question here, an order for costs should follow as a matter of course.[29]
[26] (1991) 15 Fam LR 26 (“Harris”).
[27] Harris at 37 per Ellis, Strauss and Lindenmayer JJ.
[28] Harris at 37 per Ellis, Strauss and Lindenmayer JJ.
[29] Harris at 37 per Ellis, Strauss and Lindenmayer JJ.
The Court as presently constituted is not inclined to find that the terms of orders sought in an amended initiating application were “an offer … to settle proceedings”. That matter need not be further considered here, for assuming that the Mother’s amended initiating application is such an offer, the Court is not inclined to exercise its discretion so as to weigh that offer in favour of the making of a costs order against the Father. As has been observed a number of times now in these Reasons for Judgment this was a difficult, complex and finely balanced case, and one which ultimately required judicial determination of the relevant issues. In those circumstances, the Court is not persuaded that this factor weighs in favour of the Mother obtaining a costs order against the Father.
Section 117(2A)(g) of the FL Act – other matters
Section 117(2A)(g) of the FL Act has been variously described as being:
a)“all encompassing” and an “independent source of discretion and its effect is not limited by the particular matters set out in the previous paragraphs”;[30] and
b)a provision which “could hardly … be expressed in wider terms”.[31]
[30] In the Marriage of AR and DJ Telfer (1996) 20 Fam LR 619 at 621 per Lindenmayer J, relied upon in C & C (No.2) at para.58 per Pascoe CFM.
[31] JJT CLR at 225 per Callinan J, HCA at para.126 per Callinan J.
Because paragraph (g) of s.117(2A) of the FL Act is not limited to “the proceedings” as paragraphs (a)-(f) of s.117(2A) of the FL Act are, and because of the width of its expression, it follows that, in an appropriate case, this Court might be able to consider the conduct of the parties in other related proceedings in determining whether to make a costs order.
In the Court’s view there are no other matters which warrant consideration as additional matters weighing for or against a costs order in these proceedings.
Costs – final consideration and quantum
Having considered all of the factors under s.117(2A) of the FL Act as set out above, but in particular having regard to the issues of legal aid assistance and the conduct of the proceedings by the Father in relation to the second day of hearing listed for 29 August 2013, the Court, in the exercise of the broad discretion vested in it by s.117(2) and (2A) of the FL Act, considers that the circumstances justify the making of a costs order against the Father for the costs thrown away by the Mother on 29 August 2013. Therefore, costs in the sum of $1384 will be ordered to be paid by the Father (the respondent) to the Mother (the applicant) by 21 October 2014.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 21 July 2014
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