Takhar & Takhar (No 2)
[2023] FedCFamC1F 352
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Takhar & Takhar (No 2) [2023] FedCFamC1F 352
File number(s): PAC 3386 of 2019 Judgment of: HARTNETT J Date of judgment: 10 May 2023 Catchwords: FAMILY LAW – COSTS – Where the father filed a stay application – Where the father filed a notice of discontinuance the day before the hearing of the stay application – Where the mother sought a costs order against the father - Where the mother abandoned pursuit of costs on an indemnity basis – Where the mother sought costs for a fixed sum – Where the Independent Children’s Lawyer did not seek costs – Where the father’s conduct caused the mother to incur legal costs – Costs order made in favour of the mother – Costs order in a fixed sum Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 10.03, 12.17, Sch 3
Cases cited: Collins & Collins (1985) FLC 91-603
Penfold v Penfold (1980) 144 CLR 311
Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 4 May 2023 Place: Melbourne (via videolink) Solicitor for the Applicant Gordon & Barry Lawyers Pty Ltd Counsel for the Respondent Mr Ahmad Solicitor for the Respondent: Coleman Greig Lawyers Solicitor for the Independent Children’s Lawyer Ark Law Lawyers ORDERS
PAC 3386 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TAKHAR
Applicant
AND: MS TAKHAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARTNETT J
DATE OF ORDER:
10 May 2023
THE COURT ORDERS THAT:
1.The father pay the mother’s costs of and incidental to the Application in a Proceeding filed 27 April 2023 fixed in the sum of $6,865.
2.The operation of Order 1 herein be stayed for 30 days.
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 Takhar & Takhar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
The discrete issue for the Court to determine is whether to grant the respondent mother’s (“the mother”) application for costs against the applicant father (“the father”) following the father filing an Application in a Proceeding on 27 April 2023 and subsequently a Notice of Discontinuance on 3 May 2023. Accordingly, if a costs order is made, on what basis the order be made and what the quantum of the costs should be.
On 27 April 2023, the Court made interim orders in relation to the hearing that day which pertained to the mother’s Application in a Proceeding filed 20 April 2023. The application was brought by the mother following the father failing to return the parties’ child X (“the child”) born 2017, currently aged six years, to the mother’s care on 18 April 2023 in accordance with operative interim orders. Order 8 of the orders made on 27 April 2023 provides:
Notwithstanding any other orders to the contrary the child be forthwith returned to the Mother’s care and before 4.00pm this day and thereafter the child shall remain residing with the Mother for a continuous period of 7 days. At the expiration of this period the operative orders as to residence and time spent with and communication had between the child and each of the Mother and Father continue in accordance with the operative interim orders made on 19 September 2019 and 12 December 2022.
Also on 27 April 2023, and in the afternoon of that day, the father filed a Notice of Appeal seeking to appeal Order 8 of the orders made on 27 April 2023 and an Application in a Proceeding seeking orders, relevantly being a stay of Order 8 of the orders made that day, and for leave to be granted for the Application to be heard on an urgent basis before 4.00pm that day. The Application was sealed on 28 April 2023 and listed for hearing on 4 May 2023.
On 3 May 2023, the mother filed a Response to Application in a Proceeding seeking orders, relevantly that the father’s Application in a Proceeding filed 27 April 2023 be dismissed and the father pay the mother’s costs of and incidental to the Application on an indemnity basis.
Also on 3 May 2023, at 3.46pm, being a time after the filing of the mother’s Response and affidavit in support, the father filed a Notice of Discontinuance of his stay application and withdrew his appeal. The father’s appeal is a separate matter and will not be considered in these reasons.
After the filing of the father’s Notice of Discontinuance on 3 May 2023, the mother’s solicitors wrote to the Court seeking the hearing on 4 May 2023 be retained to address the Court on the question of costs. The parties were advised the matter remained listed on 4 May 2023.
The mother had sought costs on an indemnity basis. That application was not pursued at the hearing and counsel for the mother pressed an application for costs in a fixed sum of $9,000.
The father sought orders for costs to be reserved to final hearing, which is listed for seven days on 30 May-2 June 2023 and 5, 8-9 June 2023. There is no proper basis to do so. This is a discrete issue and not dependent upon evidence at the trial.
The Independent Children’s Lawyer (“ICL”) did not make an application for costs.
LEGAL PRINCIPLES
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the general rule that each party shall bear their own costs. However, the Court being satisfied that there are circumstances justifying it doing so, may make such order for costs as it considers just in accordance with the Court's discretion. In considering what (if any) order for costs it should make, the Court shall have regard to the matters in s 117(2A) of the Act which are as follows:
(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.
Relevant to this matter, r 10.03 of the Family Law Rules 2021 (“the Rules”) provides:
(1)if a party discontinues an application or response, another party to the proceeding may apply for costs;
(2)unless the court directs otherwise, an application for costs must be made by a party within 28 days after service on the party of the notice of discontinuance; and
(3)if an order for costs is made against a party, and the party brings against the party to whom the costs are payable a further proceeding on the same or substantially the same matter, the court may stay the further proceeding until the costs are paid.
Although the Court must have regard to all of the matters in s 117 of the Act, each matters particular relevance will depend upon the particular circumstances of each case. The Court is not required to consider these matters in any particular order, and no matter takes precedence over another. It is also not necessary for there to be more than one relevant consideration for the purposes of deciding that an order is justified.
In Collins & Collins (1985) FLC 91-603 at page 79,877, the Full Court of the Family Court of Australia (Evatt CJ, Pawley & Barblett JJ), as it was then, said:
In deciding whether the circumstances justify an order for costs, there is a broad discretion to be exercised, having regard to the factors set out in subs. (2A) so far as relevant. Those factors…. are not to be read in a restrictive way, however, the discretion remaining is a broad one: Penfold v Penfold (1980) FLC 90-800 at pp 75,053-75,054 (High Court); quoted in Mallet v Mallet (1984) FLC 91-507 at pp 79,123-79, 124 (by Wilson J).
In Penfold v Penfold (1980) 144 CLR 311 at page 315, the High Court (Stephen, Mason, Aickin and Wilson JJ) held that:
It is an accurate description of s. 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s.117(2). As subsec (1) is expressed to be subject to subsec (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently …... we do not agree with the suggestion….... that an order can only be made under s.117(2) in a 'clear case'.
CONSIDERATION
Are there circumstances justifying a costs order?
I shall consider s 117 of the Act as applicable and otherwise the matters in s 117(2A) of the Act, whilst not containing the power to make an order for costs, shall be considered by me to inform the exercise of my discretion in determining a costs order where the normal course would be that costs follow the event.
In the circumstances of the case, not all of the matters set out in s 117(2A) of the Act are relevant. Accordingly, only those relevant matters are discussed hereafter.
Financial circumstances of each the parties
No evidence has been presented to the Court in relation to the parties’ financial circumstances.
Since the filing of the father’s Application in a Proceeding, neither party provided any evidence relating to their financial circumstances. This lack of evidence was noted during the hearing on 4 May 2023.
Legal Aid
The mother and father are not in receipt of Legal Aid.
The ICL is legally aided however has not made an application for costs.
The conduct of the parties
As outlined earlier in these reasons, orders were made by the Court on 27 April 2023. That day, the father filed an Application in a Proceeding seeking a stay of Order 8 of the interim orders dated 27 April 2023. The matter was then listed for hearing on 4 May 2023. The mother filed responding material on 3 May 2023 and later that day, the father filed a Notice of Discontinuance.
The conduct of the father in filing a Notice of Discontinuance after the mother had filed responding documents is conduct which I consider to be relevant to the issue of costs.
I note the father was entitled to file an application for a stay of the order which he sought to appeal. I make no criticism of the father for doing so.
The father’s solicitor submitted the issue to be determined by the Court on 27 April 2023 was a complex issue where the child made disclosures he had been abused in the mother’s care by the mother and her partner and such complexity should be considered in relation to the issue of costs currently before the Court.
I do not consider the father’s conduct in relation to issues which were to be determined on 27 April 2023 as relevant to the discrete issue of costs arising from the father discontinuing his stay application.
On 28 April 2023, the mother’s solicitors wrote to the father’s solicitors in respect of the Applicant in a Proceeding as listed on 4 May 2023, stating “We put you on notice that we will be claiming indemnity costs as and from 3.18pm on 27 April 2023....for all work incidental to, in relation and/or in connection with this Application.”[1]
[1] Mother’s affidavit filed 3 May 2023, Annexure B.
I am of the view it was reasonable for the mother to incur legal costs for the preparation of an affidavit and response and for preparation for the hearing on 4 May 2023. The hearing on 4 May 2023 was, until the late afternoon the day prior, to proceed as a hearing of the father’s application for a stay of Order 8 of the orders dated 27 April 2023.
The father’s conduct by filing an application seeking a stay of Order 8 of the orders dated 27 April 2023, and then discontinuing the application on 3 May 2023, caused the mother to incur unnecessary legal costs.
CONCLUSION
I am satisfied in the circumstances as described above that an order for the father to pay the mother’s costs is warranted.
The mother ultimately did not press her application for indemnity costs and instead costs in a fixed sum were sought. I am of the view this was a necessary concession.
The mother’s costs notice dated 4 May 2023 did not particularly assist the Court with the calculation of party-party costs. The total sum for solicitor billed and work in progress fees, together with the costs of solicitor attendance at the hearing, counsel’s preparation and counsel’s attendance at the hearing was noted to be $16,623. This sum may include costs that arise out of the Notice of Appeal and the Court is cautious to not conflate the mother’s costs in respect to the Appeal and those costs incurred in respect to the Application in a Proceeding.
Counsel for the mother submitted having regard to Schedule 3 of the Rules, and his work being at the higher end of items 201 and 202, being the items for counsel’s chambers preparation and attendance of less than three hours, costs on scale were in the sum of $7,500. A fixed sum of $9,000 having regard to counsel’s costs and solicitors costs was ultimately sought.
Counsel for the mother submitted he had to read extensive material to prepare for the hearing. It was also submitted no reserved fees were included for counsel for the mother in the costs sought, due to an appearance being made on 4 May 2023.
The father’s solicitor submitted that there perhaps be an order for a costs assessment. I do not propose to make an order for a costs assessment of the mother’s costs where such an assessment will require the parties to incur further costs in respect to this limited issue and in the context where there is a seven day final hearing in the matter commencing at the end of this month. Rule 12.17 of the Rules provides that the Court can make an order fixing a quantum of costs.
Where the Court is limited by the evidence before it, and by the costs notice dated 4 May 2023, it is reasonable to infer the solicitor for the mother completed at least the following tasks related to the father’s stay application:
(1)Read the email from the father’s solicitor dated 27 April 2023 which attached the father’s stay application and affidavit filed in support of it;
(2)Read the father’s stay application and affidavit;
(3)Provided the father’s stay application and affidavit to the mother:
(4)Conferred with the mother;
(5)Emailed the father’s solicitor on 28 April 2023 which advised the father’s solicitor indemnity costs would be claimed;
(6)Drafted, finalised, signed and filed the mother’s response to application in a proceeding;
(7)Drafted, collated annexures for, finalised, witnessed and filed the mother’s affidavit;
(8)Conferred with the mother’s counsel; and
(9)Attended the hearing on 4 May 2023.
I am satisfied that there are circumstances in this case which justify the Court departing from the general rule that each party pay their own costs. I am satisfied a costs order should be made against the husband in respect of the Application in a Proceeding filed 27 April 2023 for $6,865 being $5,000 for counsel’s fees and $1,385 for solicitor’s fees. In my view, such an order is apt in the circumstances.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 10 May 2023
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