SOMERS & SOMERS (No.2)
[2014] FCCA 760
•15 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOMERS & SOMERS (No.2) | [2014] FCCA 760 |
| Catchwords: COSTS – Application for costs – whether either party wholly unsuccessful – consideration of parties’ financial circumstances – whether Applicant seeks costs for matters already decided – costs awarded on a party and party basis – where the Applicant is herself a (occupation omitted). |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.90G, 90KA Child Support (Registration and Collection) Act 1988 (Cth) Family Law Act 1975 (Cth), s.117 Federal Circuit Court Rules 2001, Sch. 1, Part 2, Div. 1 |
| Cases cited: In the Marriage of Fisher (1990) 13 Fam LR 806; FLC 92-127 Fitzgerald v Fish [2005] FamCA 158; (2005) 33 Fam LR 123 In the Marriage of Kelly (No.2) (1981) 7 Fam LR 762; FLC 91-108 Penfold v Penfold (1980) 144 CLR 311 Somers & Somers [2014] FCCA 128 Somers & Somers [2013] FCCA 162 Somers & Somers (No.2) [2013] FCCA 1992 |
| Applicant: | MS SOMERS |
| Respondent: | MR SOMERS |
| File Number: | SYC 3026 of 2008 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 11 March 2014 |
| Date of Last Submission: | 11 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 15 April 2014 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor for the Respondent: | Ms Donnelly |
| Solicitors for the Respondent: | KDB Holmes Solicitors |
ORDERS
The Respondent is to pay the Applicant’s costs fixed in the sum of $6,480.13.
The Respondent is allowed one (1) month to pay.
IT IS NOTED that publication of this judgment under the pseudonym Somers & Somers (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3026 of 2008
| MS SOMERS |
Applicant
And
| MR SOMERS |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for costs arising out of an application to enforce a child support agreement. On 28th January 2014 an order was made that the Respondent was to pay to the Applicant the sum of $7,256.00 by way of monies due under the child support agreement (Somers & Somers[1]). The Applicant seeks an order that the Respondent should pay her costs in a total amount of $8,133.13.
[1] [2014] FCCA 128
The Respondent submits that there is no basis for an order for costs to be made and seeks that the Application should be dismissed. The Respondent contends that there are no “justifying circumstances”[2] warranting the making of an order for costs in favour of the Applicant against the Respondent.
[2] Penfold v Penfold (1980) 144 CLR 311 at 315
Background
The history of litigation between the parties was set out in some detail in Somers & Somers[3] at [23]-[48] and, more briefly in an earlier costs decision, Somers & Somers (No.2)[4] at [5]-[19] and the decision earlier this year in which the Respondent was ordered to pay the sum of $7,256.00 under the child support agreement, Somers & Somers[5] at [3]-[16].
[3] [2013] FCCA 162
[4] [2013] FCCA 1992
[5] supra
The Applicant’s Submissions
The seeks an order for costs totalling $8,133.13, in accordance with the scale contained in Division 1 of Part 2 of Schedule 1 of the Rules, made up as follows:
a)12 March 2010 – initiating Application: $2,100.00;
b)4 October 2010 – half day hearing: $ 961.00;
c)2010 – 2013 – preparation for final hearing: $1,088.00;
d)16 March 2011 – mention: $ 262.00;
e)16 November 2011 – mention: $ 262.00;
f)17 June 2013 – mention: $ 262.00;
g)18 July 2013 – mention: $ 262.00;
h)11 November 2013 – hearing: $1,924.00;
i)10 December 2013 – mention: $ 262.00;
j)28 January 2014 attending to take judgment: $ 262.00;
k)Filing fee: $ 155.00;
l)Transcript: $ 278.13;
m)Photocopying: $ 55.00.
TOTAL COSTS AND DISBURSEMENTS $8,133.13
In her submissions, the Applicant stated that judgment was delivered on 3rd May 2013 in which the Respondent was wholly unsuccessful. “There followed two further mentions and the parties were required to file and serve evidence and submissions in relation to the Mothers (sic) application for costs…A judgment for costs in favour of the Mother was delivered on 5 August 2013, with a copy of the reasons provided to the parties some two weeks following.”[6]
[6] Applicant’s submission paragraph [4]
The Applicant goes on to submit:
The Enforcement hearing was heard on 11 November 2013, following three mentions. There was a further mention on 10 December 2013. A judgment was delivered in favour of the Mother on 28 January 2014.
These submissions are concerned with the Enforcement Proceedings commenced by Summons on 12 March 2010, and the subject of some five mentions, two hearing dates, a number of other hearing dates in which the Fathers (sic) application to terminate the agreement was heard and determined and a date for delivery of judgment.[7]
[7] Ibid
The Applicant has referred the Court to the provisions of s.117 of the Family Law Act 1975 (Cth), which apply to proceedings under the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth). The matters to which the Court should have regard are set in subsection 2A. The Applicant also refers the Court to AF (Legal Aid Commission of Tasmania) & TRF & LKL[8] where it was held by the Full court of the Family Court one factor can be the sole determinant for an order for costs.
[8] [2005] FamCA 158 (reported as Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123
The Applicant submitted that there is a disparity between the financial circumstances of the parties, in that her income is currently 5% of that of the Respondent.
The Applicant refers to her earlier submissions of 22nd July 2013 as to the conduct of the parties to the proceedings (considered in the earlier costs decision of 11th November 2013[9] at [25] and [40]-[41]).
[9] Somers & Somers (No.2) [2013] FCCA 1992
As to any failure by a party to comply with pervious orders of the Court, the Applicant submits that the proceedings were necessitated by the Respondent’s failure to honour a financial agreement as defined in the Child Support (Assessment) Act 1989. The Applicant’s submission is that this Court has previously found that the financial agreement was (and still is) in force in respect of the parties’ two younger children and was in force in respect of the eldest child until he attained the age of 18 years. Thus, it is submitted, the financial agreement has been found to be enforceable under ss.90G(1A) and 90KA of the Child Support (Assessment) Act 1989.
The Applicant further submits that she was not wholly unsuccessful in the proceedings even though she did not receive the full amounts that she had claimed. On the other hand, the Respondent has been wholly unsuccessful.
The Applicant also submits that at no time has the Respondent made any offer to pay to her all or part of the non-periodic child support for arrears. She also submits that the costs that she seeks would not have been less than the sum claimed, or reduced, had the quantum of the claim been ordered in full:
In other words, the issue of the quantum of the claim did not extend the length of the hearing and the only way that costs could have been reduced would have been to abandon the claim.[10]
[10] Applicant’s submission at [36]
The Applicant submits that, being a (occupation omitted), she is entitled to costs as a self-represented litigant at the rate set out in the Rules. I have previously found that the Applicant is entitled to costs because she is a (occupation omitted) (Somers & Somers (No.2)[11]at [66]).
[11] supra
The Respondent’s Submissions
The Respondent’s solicitor, Ms Donnelly, submits that this is the Applicant’s second costs application as her first was dealt with by way of the judgment delivered on 11th November 2013. As such, she submits that the Applicant’s submissions traverse matters which have already been dealt with in that judgment and the Applicant cannot claim for those matters again. The Court, she submits, is functus officio regarding those matters.
Thus, the only items that are relevant in the Applicant’s submissions are those dated 11th November 2013 to 28th January 2014, which relate to the enforcement proceedings.
The Respondent further submits that the amount in dispute in the hearing totalled $26,396.00 plus interest, of which the Applicant was successful as to $7,256.00. Thus, it is submitted that:
The percentage of success therefore equates to approximately 16% of the total amount claimed. It is therefore, with respect, an abuse of process that the Applicant now makes an application for costs notwithstanding her limited success. The Respondent is now put to the expense of incurring legal costs in responding to that application.[12]
[12] Respondent’s Costs Submission page 6
As to the factors to be considered under s.117(2A) of the Family Law Act 1975, Ms Donnelly submitted that:
a)Both of the parties are in receipt of substantial incomes although it is acknowledged that the Respondent’s income is substantially more than the Applicant’s;
b)Neither party is in receipt of a grant of legal aid;
c)The Applicant’s conduct of the proceedings has been characterised by a litigious manner, as demonstrated by her present application in respect of a judgment in which she was largely unsuccessful, thereby requiring the Respondent to engage further in litigation;
d)The Applicant was advised that her Application filed on 25th October 2013 was defective, both on 11th November and 10th December 2013 in that it seeks both declarations in relation to the Child Support Agreement and departure Orders, but she has failed to amend the Application as required by the Consent Orders of 11th November;
e)The Respondent paid the amount of arrears of child support which was not in dispute at the earliest opportunity, having agreed to do so on 17th June 2013; and
f)These proceedings have endured over a significant period of time and the parties’ eldest child has resided largely with the Respondent since the earlier hearing concluded.[13]
[13] The Applicant disputed the claim, submitting that the young man lives with the Respondent for 60% of the time and the rest of the time with her.
The Respondent submits that the Court should exercise its discretion not to make an order for costs and dismiss the Application.
Conclusions
In considering the financial circumstances of the parties, it is not, in my view, particularly helpful to compare the incomes of the parties as a percentage of one against the other. A disparity in the financial circumstances of the parties may justify an order for costs in favour of a party (In the Marriage of Kelly (No.2)[14]) but such circumstances alone will not justify a costs order where the financially weaker party has conducted the proceedings in an unjustifiable manner (In the Marriage of Fisher[15]).
[14] (1981) 7 Fam LR 762; FLC 91-108
[15] (1990) 13 Fam LR 806; FLC 92-127
The purpose of considering the parties’ financial circumstances is, in my view, to consider whether hardship will be occasioned to one party if a costs order is made or to the other party if an order is not made. The fact that the Respondent’s income is considerably greater than that of the Applicant is not of itself sufficient to justify an order for costs against him.
Neither party is in receipt of legal aid.
Both parties have conducted this litigation in a determined manner; neither party has shrunk away from the fray.
The fact that the Respondent was ordered to pay certain amounts under the child support agreement which the Court has found to be enforceable does not mean that he has failed to comply with a Court order. It is not a Court order.
Equally, the fact that the Applicant has not amended her Application in a Case filed on 25th October 2013 despite a Consent Order that she should do so is not relevant to the current Application.
It is not particularly helpful to analyse, on percentage terms, how successful or not a particular party has been. What the Court is required to consider in s.117(2A)(e) is:
whether either party to the proceedings has been wholly unsuccessful in the proceedings;
True it is that the Applicant was not successful in obtaining an order that the Respondent should pay her the entire amount that she claimed, but she did obtain an Order against him. The Respondent’s case was that the Application should be dismissed. It was not.
The Applicant has not been wholly unsuccessful in the proceedings.
There is no evidence of any relevant written offer to settle the proceedings.
Where it appears that the Respondent is on stronger ground is in the submission that the Applicant is seeking to claim costs for matters that have already been considered, what the Respondent described as “an attempt to have another bite at the cherry”.[16]
[16] Respondent’s Costs Submission page 6
There is a previous costs judgment in this matter, which was handed down on 11th November 2013. In that matter the Applicant received an order for costs in her favour in the sum of $23,993.89. That decision related to the Applicant’s costs up to the decision of 3rd May 2013 and the subsequent costs decision delivered on 11th November 2013.
Thus, it must follow that the costs to be considered should refer to the following:
a)The enforcement hearing of 11th November 2013; and
b)The costs application arising from that hearing.
I have consulted my own notes and I am not satisfied that the mention of the matter on 10th December 2013 related specifically to the enforcement application or the costs application, so I have not allowed any amount for that date. The mention related to the Application in a Case which is still current.
Taking account of the scale in Division 1 of Part 2 of Schedule 1 to the Rules, I propose to allow the following by way of party and party costs, noting that the Applicant is herself a occupation omitted:
a)The sum of $3,061.00 for the Enforcement Application including the daily hearing fee for half a day;
b)Attendance at Court to take the judgment on 28 January 2014 - $262.00;
c)The sum of $2,562.00 for the Costs Application including the daily hearing fee;
d)The sum of $262.00 for attending to take this judgment;
e)Auscript for transcript fees – disbursement $278.13; and
f)Photocopying $55.00.
Total costs and disbursements $6,480.13
Accordingly, I will order that the Respondent is to pay the Applicant’s costs fixed in the sum of $6,480.13.
Taking account of the Respondent’s financial circumstances, I do not consider that he will be occasioned any particular hardship if he is required to pay those costs within one month. I will allow a month to pay.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 14 April 2014
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