Vader & Dantes (No 4)
[2023] FedCFamC1F 678
•17 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vader & Dantes (No 4) [2023] FedCFamC1F 678
File number(s): SYC 2265 of 2014 Judgment of: ALTOBELLI J Date of judgment: 17 August 2023 Catchwords: FAMILY LAW – COSTS – Where the husband was wholly unsuccessful – Where the husband acted contrary to the overarching purpose in s 67 of the Federal Circuit and Family Court Act 2021 (Cth) – Where the husband’s financial circumstances do not preclude a costs order from being made – Where the wife is not allowed costs for senior counsel – Where scaled costs are ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia 2021 Act (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 1.04, 12.17(1), Sch 3
Cases cited: Bhatt & Acharya (Costs) [2017] FamCAFC 71
Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
In the Marriage of I & I (No. 2) (1995) FLC 92-625; [1995] FamCA 80
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Lenova & Lenova (Costs) [2011] FamCAFC 141
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
PBF (as child representative for AF (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Vader & Dantes (No 2) [2023] FedCFamC1F 148
Vader & Dantes (No 3) [2023] FedCFamC1F 461
Division: Division 1 First Instance Number of paragraphs: 35 Date of last submission/s: 12 April 2023 Date of hearing: In Chambers Place: Sydney Solicitor for the Applicant: Swaab Attorneys The Respondent: Litigant in person ORDERS
SYC 2265 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VADER
Applicant
AND: MR DANTES
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
17 AUGUST 2023
Amended pursuant to r 10.13(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 21 September 2023
THE COURT ORDERS THAT:
1.Within 28 days of the date of this order,
Tthe Respondent husband is to pay the scale costs of the Applicant wife calculated in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in the fixed sum of $5,961.49.
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 Vader & Dantes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
The applicant wife (“the wife”) seeks an order for costs in respect of an unsuccessful Application in a Proceeding (“the Application”) filed by the respondent husband (“the husband”) on 9 December 2022. The wife seeks scale costs in the sum of $9,552.47 calculated in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”), and that the costs be fixed.
The husband opposes the application on the basis that there are no grounds for costs. He does not make his own proposal regarding costs.
BACKGROUND
On 27 January 2023, the Court heard the husband’s Application where he sought a number of procedural orders regarding single experts and single expert reports. On 15 March 2023, the Court dismissed the Application and reasons for judgment were provided: Vader & Dantes (No 2) [2023] FedCFamC1F 148 (“my reasons for judgment”).
The Court’s record indicates that the wife’s application for costs relating to the final hearing of this matter was determined by Curran J at [222]–[337] of her Honour’s reasons for judgment: Vader & Dantes (No 3) [2023] FedCFamC1F 461.
The Court’s record also indicates that the husband filed a Notice of Discontinuance on 9 May 2023, the first day of the final hearing of this matter.
PRESENT APPLICATION
Orders were made on 15 March 2023 providing for any application for costs to proceed by way of written submissions and to be determined in chambers.
In support of her case, the wife relied on the following material:
(a)Her written submissions received on 29 March 2023;
(b)Her affidavit filed 13 January 2023; and
(c)My reasons for judgment.
In support of his case, the husband relied on the following material:
(a)His written submissions received on 12 April 2023.
LEGAL PRINCIPLES
The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748.
An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which 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, make such order as the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) sets out the matters that the Court is to have regard to:
(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 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.
Although the Court is required to consider each of the abovementioned factors, it is plain that their relevance to a particular matter will depend upon the circumstances of that case and they should be considered in that light. That is, no one factor prevails over another and it is a question of the weight that is to be afforded to each of the relevant factors depending on the circumstances of the matter (Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664 at [24]). There is also “nothing to prevent any factor being the sole foundation for an order for costs” (PBF (as child representative for A (Legal Aid Commission of Tasmania)) & TRF & LKL (2005) 33 Fam LR 123 at [41]).
Whilst the applicant in a costs application must establish the circumstances justifying the making of a costs order, the Court is not limited to making such an order only in what has been described as a “clear case” (Penfold v Penfold (1980) 144 CLR 311).
It is well settled that when costs are ordered by this Court, such costs are payable on a party‑party basis. It has been held that the Court should not lightly depart from the ordinary rule (Kohan and Kohan (1993) FLC 92-340).
The provision relating to the calculation of costs is governed by r 12.17(1) of the Rules which is as follows:
12.17 Method of calculation of costs
(1) The court may order that a party is entitled to costs:
(a) of a specific amount; or
(b)as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c) to be calculated in accordance with the method stated in the order; or
(d)for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
The rule further provides that:
(3) In making an order under subrule (1), the court may consider the following:
(a) the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c) the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e)the time properly spent on the proceeding, or in complying with pre‑action procedures; and
(f)whether expenses (paid or payable) are fair, reasonable and proportionate.
DISCUSSION
Costs orders are made at the Court’s discretion based on the factors listed in s 117(2A) of the Act. The Court must consider all the factors in s 117(2A), and no one factor takes precedence over another (In the Marriage of I & I (No. 2) (1995) FLC 92-625). A discussion of these considerations follows.
Section 117(2A)(a): Financial circumstances of the parties
There is very little evidence regarding the financial circumstances of either party, as their matter concerns issues of parenting only.
In her written submissions, the wife submits that the husband has undertaken a course of conduct since the commencement of these proceedings which has resulted in substantial costs to her in the sum of $567,815.48 as at the date 25 January 2023. The wife further states that she is solely responsible for the day-to-day financial support of the parties’ child, Y, and receives $38.25 per month in child support from the husband. At paragraph 41 of her affidavit filed 13 January 2023 the wife states that she is currently employed as a health professional earning approximately $105,000 per annum. Regarding the husband’s financial circumstances, the mother alleges that the husband has been able to afford to travel overseas on at least nine occasions since March 2022.
In his written submissions, the husband submits that he cannot meet the wife’s costs. He states that: he is in receipt of government benefits in the form of the JobKeeper Payment; has had to access his superannuation early; has minimal saving; has $70,000 of unserviced debts; is in receipt of partial legal aid for related matters; is self-represented; has an exemption for Court filing costs; and has previously been exempted from paying the costs of the Independent Children’s Lawyer. The husband also states that his legal costs are commensurate to that of the wife, but that this includes loss of income as well as third-party costs. The Court notes that the husband was ordered by Curran J on 19 July 2023 to pay costs in the sum of $323,720.15 to the wife, and $16,137 to the Independent Children’s Lawyer (Vader & Dantes (No 3) [2023] FedCFamC1F 461).
However, a party’s inability to pay costs is not a bar to a costs order being made if that party’s conduct is found to warrant such an order (Cross & Beaumont (2008) 39 Fam LR 389) and mere impecuniosity is not a reason per se for declining to make a costs order (see, e.g., Lenova & Lenova (Costs) [2011] FamCAFC 141; Bhatt & Acharya (Costs) [2017] FamCAFC 71).
Despite the lack of direct evidence as to the parties’ financial positions, for the reasons set out below I am satisfied that the circumstances under s 117(2A) of the Act warrant the making of a costs order in favour of the wife, and that there is no sufficient evidence before me to indicate that a costs order should not be made against the husband due to his financial circumstances.
Section 117(2A)(b): Whether the parties are in receipt of legal aid
Neither party was in receipt of legal aid for the purposes of the Application.
Section 117(2A)(c): The conduct of the parties
The wife submits that the husband’s conduct justifies an order for costs. Firstly, the Expert Report of Mr G dated 4 January 205 (“the Report”) referred to in the Application is not attached to an affidavit and is “largely a written critique of the report of Dr B dated 30 June 2015”, with Dr B’s report having been provided to Mr G in breach of s 121 of the Act. Secondly, the husband has never filed the Report, despite knowing of its existence since 30 January 2015 and despite numerous orders requiring the parties to file and serve consolidated affidavits and third party affidavits. Thirdly, the wife submits that the husband has not acted consistently with the overarching purpose of r 1.04 of the Rules or s 67 of the Federal Circuit and Family Court of Australia 2021 Act (Cth) (“the FCFCOA Act”), as he did not bring the Application in a timely manner notwithstanding orders to file and serve all evidence; he did not engage or obtain an additional report from Mr G prior to the interim hearing on 27 January 2023; the Report was over eight years old and deficient in many areas; and he filed the Application notwithstanding that he was aware that he had poor prospects of success.
The husband does not explicitly address these issues in his written submissions, but rather comments on the conduct throughout the entirety of the proceedings of the wife and the law firm representing her. Nevertheless, he states at paragraph 15 of his written submissions that he has proceeded “in good faith and in the best interest of the child in this matter at all times”.
The Court finds that the husband, who is an experienced litigant in this Court, should have, and was probably well aware of, the above opportunities to file the Report. Filing the Application seeking to tender the outdated Report at that late stage, was conduct contrary to r 1.04 of the Rules and s 67 of the FCFCOA Act and created unnecessary costs for the wife. All of the other matters raised by the wife are also correct. A costs order is warranted under s 117(2A)(c).
Section 117(2A)(d): Failure to comply with orders of the Court
While the wife does not directly refer to s 117(2A)(d) of the Act, she does submit, as outlined above, that the husband failed to file the Report despite multiple orders requiring the parties to file the affidavits of third parties.
At paragraph 6d of his written submissions the husband alleges that the wife “has a significant history of breaching orders”, but makes no reference to the present Application or associated interim hearing.
As above, the husband’s consistent failure to file the Report when given the opportunity to do so will be taken into account in my decision to award costs in favour of the wife.
Section 117(2A)(e): Whether a party has been wholly unsuccessful in the proceedings
It is not contested that the husband was wholly unsuccessful in the relevant proceedings, with the Application being dismissed in its entirety on 15 March 2023.
It is highly relevant to my decision to award costs in favour of the wife that the father was wholly unsuccessful in obtaining the orders he sought.
Section 117(2A)(f): Offers of settlement
While the husband at paragraph 4 of his written submissions refers to “countless offers to settle over the 9.5 years”, neither party contended that this was a relevant consideration in determining whether a costs order should be made relating to the Application.
Section 117(2A)(g): Any other relevant matters
The wife seeks for the Court to find that it was appropriate for her to use senior counsel for the interim hearing for the Application, in circumstances where that same senior counsel was briefed to appear at the final hearing and there was sufficient complexity to the Application to warrant senior counsel’s involvement. The husband did not make any submissions regarding this issue.
Considering the wife’s submissions, and even without the benefit of any further submissions or opposition from the husband, the Court nonetheless finds that it was not appropriate for the wife to use senior counsel for the interim hearing for the Application.
CONCLUSION
Doing the best the Court can on the limited evidence, for the reasons above I am satisfied that it is in the interests of justice for an order for costs to be made in favour of the wife. Senior counsel’s fees will not be allowed. Indeed this is not a matter that required counsel at all. The wife is represented by an experienced solicitor. The amount sought is appropriate save for senior counsel’s fees of $3,560.98. Pursuant to r 12.17(a) of the Rules, the Court may order that a party is entitled to costs of a specific amount. The order will thus be fixed in the sum of $5,961.49.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 17 August 2023
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