Vader & Dantes (No 4)

Case [2023] FedCFamC1F 678

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…

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AGLC
Vader & Dantes (No 4) [2023] FedCFamC1F 678
Case
[2023] FedCFamC1F 678
Decision Date

CaseChat Overview and Summary

The parties in this case are Vader and Dantes. The dispute concerns costs in family law proceedings. The Federal Circuit and Family Court of Australia (Family Law) heard the case. The husband had been wholly unsuccessful in his application for procedural orders regarding single experts and single expert reports. The Court dismissed the Application and provided reasons for judgment. The wife applied for costs relating to the final hearing of the matter, which were determined by Curran J. The husband filed a Notice of Discontinuance on the first day of the final hearing. The wife applied for costs, and the husband opposed the application, but did not make his own proposal regarding costs.

The legal issue before the Court was whether the wife was entitled to costs in the proceedings. The Court had to consider the law relating to costs in family law proceedings, as well as the relevant factors set out in section 117(2A) of the Family Law Act 1975 (Cth). The Court had to consider the financial circumstances of each party, the conduct of the parties in relation to the proceedings, and whether any party had been wholly unsuccessful. The Court also had to consider whether it was appropriate for the wife to use senior counsel for the interim hearing.

The Court found that it was not appropriate for the wife to use senior counsel for the interim hearing. The Court also found that it was in the interests of justice for an order for costs to be made in favour of the wife. The amount sought was appropriate, save for senior counsel’s fees. The Court ordered that the husband is to pay the scale costs of the wife in a fixed sum of $5,961.49. The Court noted that this amount was calculated in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

The Court ordered that within 28 days of the date of the order, the husband is to pay the wife’s costs in the fixed sum of $5,961.49. The form of the order is subject to the entry in the Court’s records. The Court noted that this copy of the Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order. The Court also noted that 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.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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