THOMAS & WINN (No.2)
[2005] FMCAfam 357
•15 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMAS & WINN (No.2) | [2005] FMCAfam 357 |
| CHILD SUPPORT – Costs – applicant wholly unsuccessful – costs ordered against applicant. |
Family Law Act1975, s.117
In the marriage of Kelly (No.2) (1981) FLC ¶91-108
Penfold v Penfold, (1980) 144 CLR 311
Re Collins and Victorian Legal Aid Commission (1984) FLC ¶91-508
| Applicant: | GLEN PHILLIP THOMAS |
| Respondent: | BERNADETTE MARY WINN |
| File No: | TVM 218 of 2003 |
| Delivered on: | 15 July 2005 |
| Delivered at: | Melbourne |
| Date of Last Submission: | 20 May 2005 |
| Judgment of: | Riethmuller FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared on his own behalf |
| Counsel for the Respondent: | Wayne Pennell |
| Solicitors for the Respondent: | Lee Turnbull & Co |
ORDERS
The applicant pay the respondent’s costs fixed in the sum of $10,943.00.
The applicant pay the reasonable costs of International Risk & Development Consultants Pty Ltd and Janco Developments Pty Ltd, as agreed, and failing agreement to be assessed by the Registrar of the Family Court.
FEDERAL MAGISTRATES |
TVM 218 of 2003
| GLEN PHILLIP THOMAS |
Applicant
And
| BERNADETTE MARY WINN |
Respondent
REASONS FOR JUDGMENT
This is an application for costs by each party to the litigation. The costs application follows my judgment in the substantive matter, Thomas & Winn [2004] FMCAfam 184.
The respondent seeks costs in the sum of $14,227.00 against the applicant. The applicant seeks costs in the sum of $14,182.73 against the respondent.
Costs in child support matters are governed by s.117 of the Family Law Act. Section 117(1) states that subject to subsection 2, each party shall bear their own costs. Subsection (2) provides that if:
(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) 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.
The relevant considerations are set out in s 117(2A), which is in the following terms:
(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, in accordance with section 117C or otherwise, 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 section was considered by the High Court in Penfold v Penfold (1980) 144 CLR 311. The High Court said:
13. 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 two provisions which imposes any additional or special onus on an applicant for an order for costs.
It is appropriate that I consider the matters set out in s.117(2A) in determining whether or not there are circumstances that justify making a costs order.
Section 117(2A)(a) provides for consideration of the financial circumstances of the parties. A disparity in financial circumstances would be significant and in some cases may of itself justify an order for costs in favour of a party: see In the marriage of Kelly (No.2) (1981) FLC ¶91-108.
I have regard to the findings that I made on the substantive issue that the respondent's financial position is far worse than that of the applicant. The respective financial positions of the parties are set out therein.
Section 117(2A)(b) provides for consideration of whether or not the parties are in receipt of legal assistance. Neither party in this case is said to be in receipt of legal aid.
Section 117(2A)(c) and (d) requires consideration of the conduct of the parties in the proceedings. In this matter there were considerable difficulties between the parties with respect to disclosure. I am not satisfied that the conduct of either party as referred to in section 117(2A)(c) and (d) justifies an order for costs of itself, in that I am not satisfied that one or the other party has conducted themselves in such a way as to deliberately frustrate the proceedings or cause costs to be incurred.
With respect to s.117(2A)(e), it is clear that the applicant's application was wholly unsuccessful in these proceedings. The application was dismissed.
I am not advised of any offer in writing to settle the proceedings in the sense described by s.117(2A)(f), nor any informal offer.
Under s.117(2A)(g), the Court may have regard to any other matters that the Court considers relevant. In this regard the respondent asks that I take into account his assertions that he had received poor advice and had a lack of opportunity to appeal administrative decisions made by the Child Support Agency.
It is not a case where it is suggested that the respondent has caused any of these difficulties. If the applicant has received poor advice from an adviser then he would have remedies in review with respect to that adviser.
The applicant had participated in opportunities in the administrative processes at the Child Support Agency, the results of which he did not accept. The applicant was unsuccessful in his application for a change to the administrative assessment. It is for this reason that the applicant made application to the Court.
I also take into account that cases such as this, which concerns the day to day support of the child, involve an amount of money which, if there is no costs order made, leaves the respondent with a pyrrhic victory (see Re Collins and Victorian Legal Aid Commission (1984) FLC ¶91-508). The respondent has been forced to expend a considerable sum on costs in order to defend a child support assessment issued by the Child Support Agency.
In the circumstances, I find that a costs order in favour of the respondent is justified and that it is appropriate that those costs be assessed upon the relevant Federal Magistrate Court's scale.
There were mentions of the matter on the following dates: 25 November 2003, 20 February 2004, 5 April 2004, 8 April 2004, 21 May 2004, 16 November 2004 and 29 November 2004. There was a hearing with respect to objections to subpoenas on 31 March 2005 and a short mention for the delivery of judgment on 22 April 2005.
Under the schedule to the Federal Magistrate Court rules, short mentions attract a fee of $190.00, and the sum set for a half-day hearing is $685.00.
The applicant claims $190.00 for each of the mentions and $685.00 for the half-day hearing. The applicant would be entitled to a 50 per cent loading on the half-day hearing fee as a result of employing an advocate, however has not claimed the additional sum. Presumably this is as a result of the relatively short period that it took for the half-day hearing to take place. It appears to me that this is a reasonable fee for this part of the work.
The matter was listed for two days on 25 and 26 October 2004, and therefore would attract a preparation fee of $3,600.00, as claimed. And advocacy loading is not appropriate for the preparation fee as claimed by the applicant.
The second day of the hearing was aborted as a result of the medical condition by the respondent. However, it is not appropriate that the respondent should bear the costs thrown away as a result of this, in circumstances where the application has been wholly unsuccessful.
The second hearing day was ultimately held on 2 December 2004. This does not, in my view, extend the matter beyond a two-day matter for the purpose of a Stage Five preparation to final hearing in the schedule.
The applicant is entitled to a fee for each day of hearing at $1,365.00, which is claimed in the schedule of costs claimed in this matter.
The final matters claimed relate to postage and stationery and witness expenses. It appears to me that the general lump sum fee covers standard postage, phone calls and other minor outlays incurred in the normal running of an office. The disbursement amounts requested in the schedule refers to Court fees and other fees and payments. This item would include the witness expenses incurred to bring the witness called by the respondent, who travelled from Canberra. The amount claimed for the witness expenses of $1,043.00 is not alleged by the applicant to be an inappropriate sum for the witness expenses for witness's attendance.
I therefore calculate the respondent’s costs in the sum of $10,943.00.
I formally find that there is no merit in the applicant's submissions that the respondent ought to pay the applicant's costs in the circumstances of this case. It would be incredible that a successful respondent in child support proceedings (that is, successful in defending the existing child support assessment), ought to be ordered to pay the unsuccessful applicant's costs.
I have also received from the applicant submissions with respect to costs on behalf of two companies referred to in the proceedings, International Risk & Development Consultants Pty Ltd and Janco Developments Pty Ltd. These submissions are signed by Ms J Thomas.
To the extent that costs were incurred by these companies to answer the relevant subpoenas in the proceedings, they were costs which would ultimately form part of the disbursements that the applicant should pay to the respondent.
It is open to me in the exercise of the discretion to award costs to order that the applicant pay the costs of the third parties directly.
The applicant does not appear to dispute the costs of the third parties. However he should be allowed the opportunity to do so. It is appropriate that the applicant meet these costs directly.
I therefore order that the applicant pay the respondent's costs of $10,943.00 and the costs of International Risk & Development Consultants Pty Ltd and Janco Developments Pty Ltd.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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