Van Broeck and Wilzink (Costs)
[2012] FamCAFC 182
•13 November 2012
FAMILY COURT OF AUSTRALIA
| VAN BROECK & WILZINK (COSTS) | [2012] FamCAFC 182 |
| FAMILY LAW – APPLICATION – COSTS – where the respondent seeks costs in the sum of $4,883 – where the appellant has failed to indicate his position in relation to the application but the tenor of his submissions suggest that he opposes the order sought – where the conduct of the proceedings by the appellant and his lack of success justify an order for costs being made – costs order made as sought by the respondent. |
| Family Law Act 1975 (Cth) – s 94AAA(3), s 117 |
| APPELLANT: | Mr Van Broeck |
| RESPONDENT: | Ms Wilzink |
| APPEAL FILE NUMBER: | SOA | 90 | of | 2011 |
| FILE NUMBER: | DGC | 2421 | of | 2011 |
| DATE DELIVERED: | 13 November 2012 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | By Written Submissions |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 November 2011 |
| LOWER COURT MNC: | NA – Consent Orders |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Harris |
| SOLICITORS FOR THE RESPONDENT: | Victoria Legal Aid |
Orders
IT IS ORDERED THAT:
The father pay to the mother the sum of $4,883 by way of costs, such payment to be made within nine (9) calendar months of the date of this order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Van Broeck & Wilzink (Costs) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 90 of 2011
File Number: DGC 2421 of 2011
| Mr Van Broeck |
Appellant
And
| Ms Wilzink |
Respondent
REASONS FOR JUDGMENT
Introduction
On 5 April 2012 the Chief Justice directed that pursuant to the provisions of sub-section 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) it was appropriate for the jurisdiction of the Family Court in relation to this appeal to be exercised by a single judge.
On 21 June 2012 I dismissed the Amended Notice of Appeal filed by the father on 23 April 2012.
At that hearing counsel for the mother in effect made an application for costs, but because there was insufficient time to address that application I put in place a regime for the filing of written submissions.
Pursuant to the order made on 21 June 2012, the mother filed her written submissions on 4 July 2012. In response the father filed an affidavit on 25 July 2012 and written submissions on the same date.
Subsequently the father filed and sought to rely on an Affidavit sworn on
3 August 2012. The mother objected to that affidavit being relied on given that it was filed out of time and there was no application by the father to extend time. However, I have perused the affidavit and I do not consider that its contents in any way prejudice the mother or requires any response by her. Thus, for what it is worth, I have received this affidavit.
The application for costs
The mother seeks an order that the father pay the sum of $4,883 by way of costs.
The father failed to indicate his position in relation to this application in either his affidavit or his written submissions, but the tenor of his submissions would suggest that he opposes the order sought and I will proceed on that basis.
I also observe that the affidavit filed by the father on 25 July 2012, for some inexplicable reason, referred to a name correction on the birth certificate of the child the subject of the proceedings, and addressed just one aspect of the mother’s submissions, namely, the alleged failure by him to file appeal books. The accompanying written submissions though are more fulsome in responding to the submissions of the mother.
The statute law
The principles which govern an application for costs in proceedings under the Act are set out in s 117 of the Act. Relevantly that section provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(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.
(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.
Thus, the general principle is that each party should bear their own costs, but the court is able to make an order for costs if it is of the opinion that there are circumstances which would justify such an order. Then s 117(2A) sets out a range of matters to which the court must have regard in considering whether to make an order for costs and what that order should be.
Discussion
There can be no doubt that there are circumstances here that justify an order for costs being made, and that will become readily apparent as I address each matter in s 117(2A) of the Act.
(a)The financial circumstances of the parties
The mother receives an income tested Centrelink benefit of $528 per month. She has the full time care of two children, A, the child the subject of the proceedings, and who is now aged 15 years, and B who is aged 8 or 9 years.
The mother receives $1 per day by way of child support for A from the father, and $1,126 per month by way of child support for B from his father.
The mother also receives a total of $750 per week from three international students as their board. Understandably that amount is not treated as part of her disposable income.
There is no evidence of the mother’s expenses or her assets and liabilities.
The father is in receipt of a disability support pension of $695.30 per fortnight, a pension supplement of $60.20 per fortnight, rent assistance of $100 per week, and payment of his child support liability of $28.36 per month.
As for his expenses, he pays $120 per week rent, the repayment of a lump sum advance and a no-interest loan.
The father has a bank account (unknown current balance), a motor vehicle, and some superannuation (approximately $1,200), but seemingly no other assets.
(b)Legal aid
The mother was in receipt of a grant of legal aid for the appeal but the father was not.
The costs incurred by Victoria Legal Aid in relation to the mother’s response to the appeal totals $4,883.
(c)The conduct of the parties to the proceedings
The appeal was against orders made by Federal Magistrate Riethmuller on
30 November 2011. The father filed his Notice of Appeal on 23 December 2012, and then an Amended Notice of Appeal on 16 February 2012.Despite the amendments, the grounds of appeal relied on by the father failed to disclose any appealable error by the Federal Magistrate, and had no merit. Accordingly, at the first directions hearing held on 21 March 2012 the matter was adjourned to 3 April 2012 to enable the father to seek legal advice and file a further Amended Notice of Appeal if so advised. I reserved the question of the mother’s costs.
On 3 April 2012 the father sought a further adjournment to obtain legal advice. That was opposed by the mother, and indeed on 29 March 2012 the mother had filed an application seeking dismissal of the appeal, or in the alternative, security for the costs of the appeal.
I granted an adjournment to 21 June 2012, and ordered the father to file a further Amended Notice of Appeal, noting that if he failed to do so the Amended Notice of Appeal filed on 16 February 2012 would be dismissed. I again reserved the question of the mother’s costs.
On 23 April 2012 the father filed a further Amended Notice of Appeal, but the grounds of appeal still failed to identify any appealable error by the Federal Magistrate, and were completely without merit.
On 21 June 2012 the father indicated that he had not secured legal representation, and that he had not taken up any of the other suggestions made to improve the prospects of his case.
As a result, as referred to above, on that day I dismissed the father’s further Amended Notice of Appeal. I delivered ex-tempore reasons for judgment and I refer to those reasons without repeating them here.
I also observe that during the course of these proceedings the father has filed a number of applications and affidavits including affidavits of hundreds of pages in length. The majority of these applications and affidavits were unintelligible, and where they were intelligible were largely inadmissible and irrelevant to the appeal, and without merit.
(d)Compliance with previous orders of the court
There is no relevant issue here.
(e)Wholly unsuccessful in the proceedings
The father has been wholly unsuccessful in the appeal, and in each application in an appeal whether filed by him or by the mother. Further, when there has been an adjournment granted to the father it has been on the basis of the costs of the mother being reserved.
(f)Offers of settlement
The mother seeks to rely on advices to the father to the effect that costs or security for costs would be sought against him, and that his Notices of Appeal did not reveal “valid grounds of appeal”. However, I do not consider that these advices can be viewed as settlement offers and thus I do not propose to take them into account.
(g)Other matters
The mother sought to rely on criticisms of how the father has conducted the proceedings including that he has done so disregarding “the best interests of the child [A]”, that he has made “horrendous allegations” against Auscript and the Federal Magistrate without any substance”, and that he ultimately failed to secure legal representation.
For my part, I do not consider that these are matters that should sound in costs, and again I do not propose to take them into account.
The mother also seeks to raise issues of “public policy” in respect of the application for costs. The argument is that because the mother is legally aided the costs of the mother in responding to the appeal are funded from “the public purse”, and for that reason the father should be required to pay those costs.
I do not find this a persuasive argument in this case. It is an argument that can justify parties contributing to the costs of an Independent Children’s Lawyer funded by legal aid, but not where one party is legally aided and the other not; there could be all sorts of reasons for that to be the case.
Finally, the mother seems to suggest that the court can take into account that the proceedings have caused the child A and her family “to endure significant psychological and emotional stress”, and that “it is feared that the (father) will continue to bring further unmeritorious proceedings regarding the child in the future”. Apart from the fact that there is an absence of admissible evidence as to these issues, it is not open to this court to take matters such as this into account in a costs application. Accordingly, I disregard these submissions.
Conclusion
The circumstances justifying an order for costs are the conduct of the proceedings by the father, and his lack of success. The application for costs is not enhanced or impeded by virtue of any fact or circumstance within the context of s 117(2A)(a) or (b). In particular, in relation to the financial circumstances of the father, although they are not, to use the vernacular, great, that is not a consideration which would lead this court to refuse an application for costs in circumstances such as these, where it is the father’s conduct that has required the mother to incur substantial legal costs.
As to the amount of the costs order, given that the costs are as allowed by Victoria Legal Aid, I assume that that accords with the party/party scale of costs in Schedule 3 to the Family Law Rules 2004 (Cth). Accordingly, I propose to order that the father pay to the mother the sum of $4, 883 by way of costs.
As to time to pay, although no submissions were made by either party, given the father’s financial circumstances I propose to allow him nine months in which to pay the amount ordered.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
13 November 2012.
Associate:
Date: 13 November 2012
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