UNDERWOOD & PRATT

[2015] FCCA 1818

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNDERWOOD & PRATT [2015] FCCA 1818

Catchwords:
FAMILY LAW – Costs – application for costs – where applicant was successful in proceedings under the Family Law Act 1975 (Cth) – financial circumstances of the parties considered – where applicant was in receipt of legal aid – where party and party costs in accordance with Federal Circuit Court Rules 2001 Sch.1 Part 1 exceed amount actually charged to Legal Aid NSW – where a party may not claim more by way of costs than actually charged.

Legislation:

Family Law Act 1975 (Cth), s.117

Legal Aid Commission Act 1979 (NSW), s.41
Federal Circuit Court Rules 2001, Sch.1 Part 1

Cases cited:
Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544
Underwood & Pratt [2014] FCCA 3079
Wade & McPherson [2014] FCCA 1321

Applicant: MS UNDERWOOD

Respondent: MR PRATT

File Number: NCC 2003 of 2010

Judgment of: Judge Scarlett

Hearing date: 18 March 2015

Date of Last Submission: 18 March 2015

Delivered at: Sydney

Delivered on: 30 June 2015

REPRESENTATION

Solicitor for the Applicant: Mr Haricharan

Solicitors for the Applicant: Hunter Family Law Centre

Respondent: In person

ORDERS

1. The Respondent is to pay the Applicant’s costs fixed in the sum of $8,961.98.

2. The Respondent is allowed six (6) months to pay.

IT IS NOTED that publication of this judgment under the pseudonym Underwood & Pratt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

NCC 2003 of 2010

MS UNDERWOOD

Applicant

And

MR PRATT

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for costs made by the wife, who was the successful Applicant in parenting proceedings heard in this Court last year (Underwood & Pratt[1]). The Application is supported by an affidavit of the Applicant’s solicitor, Ms Furner, dated 11 December 2014.

   [1] [2014] FCCA 3079

2. In her affidavit, Ms Furner deposes that her client was legally aided by Legal Aid New South Wales and annexes copies of:

   a)Three grants of aid dated 17 June, 4 November and 28 November 2014;

   b)Nine invoices submitted to Legal Aid NSW between 14 October and 8 December 2014.

3. The invoices total $8,961.98, which is clearly the amount sought from the Respondent.

4. The Respondent opposes the application, telling the Court that an order for costs would cause hardship to him, particularly as he was unemployed from November 2014 to February 2015.  

Applications for costs in family law proceedings

1. Whilst costs are discretionary, that discretion must be exercised within the confines of s.117 of the Family Law Act 1975(Cth). Subsection (1) sets out the general proposition that each party to proceedings under the Act should bear his or her own costs, but s.117(2) provides that:

   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,…