Swinbank & Stein (No 2)
[2022] FedCFamC1F 731
Federal Circuit and Family court of Australia
(DIVISION 1)
Swinbank & Stein (No 2) [2022] FedCFamC1F 731
File number(s): CSC103 of 2021 Judgment of: JARRETT J Date of judgment: 26 September, 2022 Catchwords: FAMILY LAW – Costs – application for costs on indemnity basis – whether justifying circumstances – no justifying circumstances Legislation: Family Law Act 1975 (Cth), ss 102NA(2), 117(1), 117(2A)
Federal Circuit and Family court of Australia (Family Law) Rules 2021, r12.13(3)(b)
Cases cited: Penfold v Penfold (1980) 144 CLR 311 Division: Division 1 First Instance Number of paragraphs: 19 Date of last submission/s: 21 September, 2022 Date of hearing: By written submission Place: Brisbane ORDERS
CSC 103 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SWINBANK
Applicant
AND: MS STEIN
Respondent
order made by:
JARRETT J
DATE OF ORDER:
26 sEPTEMBER 2022
THE COURT ORDERS THAT:
1.The application filed on 5 February, 2021 is dismissed.
2.The response filed on 15 April, 2021 is dismissed.
3.There is no order as to costs.
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 the pseudonym Swinbank & Stein has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 14 September, 2022 I delivered reasons for judgment in the principal application between the applicant and the respondent. The question before me was whether the applicant and the respondent were in a de facto relationship for the purposes of the Family Law Act 1975 (Cth) from about 2014 until 2019 or 2020. I found that they were never in a de facto relationship for the purposes of the Act and made a declaration to that effect.
By the orders and directions I made on 14 September, 2022 I foreshadowed an order dismissing the principal proceedings and I invited submissions as to any alternate or other orders either party saw as appropriate. The time for making those submissions has now passed. The applicant has not made any further submissions. The respondent has made a submission.
The respondent’s submissions do not deal with the orders to be made in the substantive proceedings. Instead, she seeks an order for costs. That was not the purpose of the direction that I made; rather it was directed to orders dealing with the substantive application before the court. Costs, I thought, could be dealt with under the Federal Circuit and Family court of Australia (Family Law) Rules 2021 and specifically rule 12.13(3)(b). I accept, however, that my directions are not explicit on that issue.
It is apparent from the applicant’s failure to make any submissions at all and the respondent’s failure to make any submissions on the orders to be made to deal with the substantive proceedings, that the order I have foreshadowed, namely that the application filed on 5 February, 2021 and the response filed on 15 April, 2021 be dismissed, is appropriate. I will make that order.
I have treated the respondent’s submissions as an informal application for an order that the applicant pay her costs of the proceedings on an indemnity basis. In any event, I note that she sought an order that the applicant pay her costs in her response filed on 15 April, 2021.
The respondent has filed no evidence in support of her application for costs, although she seems to rely upon an affidavit deposed by Ms CC and filed on 19 August, 2021 and refiled on 22 September, 2022. The affidavit deals with issues concerning disclosure between the parties. That issue was the subject of an order made by Judge Cope (when the application was in the Federal Circuit Court of Australia (as it was then known)).
The respondent’s submissions refer to various factual matters, such as without prejudice discussions, offers to settle and what occurred at a conciliation conference, but there is no evidence to support those factual contentions. Nonetheless, I have treated her statements as uncontroversial and for the purposes of this costs judgment, I accept what she submits to be factually accurate.
Section 117(1) of the Family Law Act 1975 (Cth) provides that ordinarily parties to proceedings under that Act should bear their own costs. The court has a discretion to make a different order as to costs if, in the circumstances of the case, it thinks it should do so. To enliven the discretion to make an order for costs, all that is required is a finding that there are justifying circumstances: Penfold v Penfold (1980) 144 CLR 311.
In considering what order to make (if any) concerning costs, the court shall have regard to the matters set out in s 117(2A) of the Family Law Act. The respondent’s submissions do not address these matters. She seems to proceed on the basis that a costs order against the applicant is a given and that the only issue to be determined is whether the costs should be assessed on a party-and-party basis or the indemnity basis.
There is no direct evidence before me of the parties’ financial circumstances on the present application although there was some evidence of their financial circumstances in the trial before me. From that evidence, it is clear that the respondent is in a far superior financial position than the applicant. Whilst it is difficult to make precise findings about that because of the state of the evidence in the trial, it is clear that the respondent owns at least three parcels of income producing real property (subject to some secured liabilities). The applicant has very little by way of assets although it was suggested that he might have one or two boats and a motor vehicle.
It is not immediately apparent whether the parties are in receipt of legal aid. I infer that at least for the purposes of the trial each did have legal aid. I infer that because first, by order 11 made on 24 August, 2021 Judge Cope ordered that the requirements of s 102NA(2) of the Act applied, preventing personal cross-examination of each party by the other. Second, both parties appeared legally represented at the trial before me. Third, the applicant’s financial circumstances revealed at the trial are such that it is probably unlikely that he could afford his own representation. Fifth, the respondent’s financial resources are such that she would be unlikely to receive a grant of legal aid for the trial under ordinary circumstances. Finally, in the respondent’s schedule of costs appended to her submissions, the charge by the firm of solicitors who acted for her at the trial was $153.12. They were worth more than that. I infer from that two matters, namely that she paid them no more than $153.12 herself and that the balance of their fees and outlays were funded by Legal Aid Queensland under the scheme established to facilitate representation for parties where s 102NA(2) is engaged.
I note that since May, 2021 the respondent has paid the legal costs set out in the annexure to her submissions.
The respondent argues that:
(a)the unusually voluminous amount of hearsay evidence and “unsubstantiated” evidence in support of the applicants position;
(b)the factual complexity of the case; and
(c)the repeated efforts that the respondent's solicitors have had to undertake to obtain documents or responses to information requests made to the applicant
all mean that the amount provided for by the scale prescribed by the Rules is inadequate and there should be an order for indemnity costs.
However, I have taken these matters into account to determine whether there should be a costs order at all in the proceedings. In my experience, the amount of hearsay evidence (on both sides of the record) was not unusually voluminous. I have made some remarks about the evidence of both parties in my reasons in the principal application and will not repeat them here. Nor was the case particularly factually complex. Moreover, disagreements about disclosure are not unusual in proceedings under the Act and in the end, nothing turned upon any deficiency in that regard by either party.
The applicant was wholly unsuccessful in his claim. He failed to prove his case to the requisite standard. That is not to say that I accepted the respondent’s case in its entirety. I was critical of her as a witness of truth in several respects. I take into account the applicant’s lack of success.
The respondent submits that the claim by the applicant was “vexatious, without evidentiary merit and solely designed by the Applicant to allow the Applicant to use the proceedings to threaten the Respondent on an ongoing basis and otherwise intimidate the Respondent and make her fearful of her safety”. I reject that submission. Had the applicant’s claim been properly prepared, I rather suspect that his chances of success would have increased immeasurably. After a relationship spanning about 6 years, that was productive of two children and in circumstances where I rejected the claims of the respondent as to the extent of the parties’ relationship, it could hardly be argued that the applicant’s claim was vexatious.
The respondent relies upon a without prejudice offer to settle the proceedings made, presumably, by her on 13 June, 2022. The terms of the offer are not in evidence. She says that the applicant “refused to accept the offer or negotiate”. Previous attempts to resolve the dispute had been unsuccessful. Because the terms of the offer are not in evidence, I am unable to give it proper consideration.
Conclusion
Having regard to the above matters, I am not satisfied that there are circumstances that justify the court making an order for costs as sought by the respondent, or at all. The discretion to make a costs order, let alone an order for indemnity costs, is not enlivened.
The orders will be as set out at the commencement of these reasons.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 26 September, 2022
0
1
0