VINGE & VINGE
[2012] FMCAfam 132
•17 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VINGE & VINGE | [2012] FMCAfam 132 |
| FAMILY LAW – Costs. |
| Family Law Act 1975, s.117 |
| Applicant: | MS VINGE |
| Respondent: | MR VINGE |
| File Number: | ADC 1221 of 2010 |
| Judgment of: | Kelly FM |
| Hearing date: | 17 January 2012 |
| Date of Last Submission: | 17 January 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 17 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Annells |
| Solicitors for the Applicant: | DeGaris Lawyers |
| The Respondent: | In Person |
ORDERS
The husband’s Application in a Case filed 16 January 2012 is dismissed.
The husband contribute towards the wife’s costs of and incidental to these proceedings in the sum of TEN THOUSAND, TWO HUNDRED AND FORTY DOLLARS ($10,240) (incorporating the costs order made on 11 April 2011), such sum to be deducted from the funds due to the husband at settlement.
The parties do all things necessary to comply with paragraph 15 of the orders of 10 November 2011 within fourteen (14) days.
The wife’s Application in a Case filed 9 December 2011 is otherwise dismissed as finalised.
IT IS NOTED that publication of this judgment under the pseudonym Vinge & Vinge is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1221 of 2010
| MS VINGE |
Applicant
And
| MR VINGE |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally. They have been edited and corrected from transcript to correct any grammatical errors and generally to make my oral reasons easier to read.
We are here today dealing with what is hopefully the final aspect of this case relating to the wife’s application for costs arising from the proceedings, which she assesses in the sum of approximately $20,000. That is the sum claimed by her having costed out her legal fees in accordance with the Federal Magistrates Court scale. It may well be that her actual legal fees were substantially higher than that, at the end of the day.
The husband rejects the wife’s application for costs and, indeed, pursues an application for costs on his own behalf. It is appropriate I deal with each of the applications separately, to a certain extent.
I have considered the affidavit material filed by each party in support of their costs application. It is important for both parties to remember that pursuant to s.117(1) the starting point for litigants in the family law system is that each party shall bear their own costs. The reason for this approach is that the Court is endeavouring to assist parties in managing the breakdown of an interpersonal relationship, not a commercial relationship. For that reason, there is a general sense that each party should engage in the process free from the threat of a costs order hanging over them if they “lose” the case, or are unsuccessful.
Having said that, the Family Law Act then goes on to indicate that the Court has the discretion to make a costs order in circumstances when the Court considers it is just and proper to do so. Section 117(2A) sets out the factors the Court should take into account in considering an application for costs. These factors include the financial circumstances of each of the parties and whether either party is in receipt of legal aid (which does not apply here).
The Court is also directed to consider the conduct of the parties to the proceedings, whether the proceedings were necessitated by the failure of a party to comply with previous orders of the Court, whether either party has been wholly unsuccessful in the proceedings, whether an offer of settlement has been made and the terms of that offer, and any other such matters as the Court considers relevant.
The wife’s application is based largely on the fact that, in terms of the final orders made, the husband was unsuccessful. The final property settlement did not exceed the offer put to him by the wife and he was also unsuccessful in obtaining any of the specific parenting orders set out in his application. On both parenting issues and financial matters, the final orders were much closer to the proposals put forward by the wife.
There is implicit in the wife’s case also an argument that the husband’s conduct in the course of these proceedings has greatly exacerbated the costs incurred by her. Indeed, Ms Annells’ affidavit refers to the urgent application that the wife filed in April last year, relating to the father removing [Y] from school without notice.
There is no doubt that this matter has had a fairly torturous history through the Court process. There have been significantly more interim and interlocutory hearings than would usually occur. This is partly attributable to the fact that Mr Vinge is representing himself. More active case management is often required where one party has not had the advantage of legal representation to guide them and assist their understanding of the Court process and the expectations placed upon litigants within the Court process.
But there have also been issues relating to the manner in which
Mr Vinge chose to present his case that have clearly exacerbated the intensity of the Court process. This has required, not just more active case management, but more active legal representation on behalf of the wife than would normally be required. Whether that should be reflected in a costs order is a difficult issue to address, but there is no doubt in my mind that the wife has incurred substantially greater legal costs by virtue of the way these proceedings have been conducted by the husband.
That is not a particular criticism of the husband. He has done his best and has managed to present his case relatively effectively, given that he is self represented. However, there is no doubt that the trial was longer than would otherwise have been the case if the husband had been represented, or if, for example, he had participated in earlier interlocutory steps such as the family assessment.
A quick look at the file indicates there were approximately 10 interim hearings requiring the parties’ attendance. That is a very high number for a case where the factual background and the issues in dispute between the parties, while vitally important to them and to the welfare of their children, were not overly complex.
The Court’s starting point must always be that each party should bear his or her own costs unless the Court is satisfied under one of the factors listed in Section 117(2A) that there are grounds to depart from that basic premise and that it is just to do so. I am satisfied in the case before me that the wife should succeed in her application for costs, but not to the extent sought by her, insofar as she seeks an order that the husband pay all of the costs incurred by her, as assessed on scale under the Federal Magistrates Court Rules.
I am satisfied that the urgent application filed in April 2010 would not have been necessary but for the husband’s actions, which were inappropriate and unjustifiable. I am further satisfied that a portion of the costs associated with the trial are appropriately claimed, but not all of her trial costs. The financial outcome was a near run thing. Some of the figures that finally came before the Court at trial may have affected each party’s capacity to engage in negotiations.
In that regard I note Mr Vinge’s complaints about the late production of certain documentation. While my memory may not be entirely reliable, I recall there were certain documents produced on the morning of the trial that had not previously been sent to the husband, or at least not received by him.
I accept Ms Annells’ ongoing submissions that across the last 12 to 18 months extensive discovery has been provided by post and by email to the husband. I accept that Mr Vinge claims not to have received certain of these documents and that the email exchange appeared to be less reliable at times.
I do not consider the wife was withholding properly discoverable material and this is not a factor that would necessarily see me make a costs order in favour of the husband. However, I think there is some uncertainty about whether all of the material was received by the husband prior to trial. And while that may not have been the wife’s fault, it is a factor I take into account in assessing the extent of a costs order against the husband.
In terms of Mr B’s involvement, the Court had ordered that the parties share equally in his costs. That the husband chose not to participate in the assessment is a matter for him, but that order and the costs incurred in relation to Mr B’s assessment should be shared between the parties. Further, had the husband participated in the assessment, as he was ordered to, it may have enabled some meaningful negotiations to occur prior to the final hearing.
There were also a number of interlocutory hearings where interim parenting orders were made in favour of the husband spending time with [Y], which time was not then taken up by him. On each such occasion the wife incurred the cost of preparing affidavits and having her legal representatives attend at Court to deal with the issue. These were not matters that were specifically referred to in Ms Annells’ affidavit, but they are certainly matters that I take into account in terms of the husband’s conduct in these proceedings and my approach to the wife’s application for costs.
I do not intend trying to undertake an item by item analysis of the costs that I consider should properly be awarded to the wife. I am satisfied that her costs in terms of interlocutory processes, trial preparation and counsel fees were higher than they would otherwise have been. I see no good reason why this matter could not have been concluded within two days, rather than the three-day hearing that ultimately took place.
Taking into account all of the matters that I have referred to, I come to the conclusion that it is just and equitable that there be an order that the husband make a contribution towards the wife’s costs, and I intend to fix an amount in that regard in the sum of $10,000. I fix this figure taking into account the costs of Counsel’s attendance on a daily basis, including the appropriate loading for Counsel’s attendance at trial.
I take into account the issues I have referred to regarding Mr B’s fees and the husband’s failure to make any contribution to that process and associated expense, together with the extensive interim and interlocutory management that was required, by and large, because
Mr Vinge was representing himself. While he eventually managed to present his case reasonably well, it did come at a cost to the wife in terms of her own legal fees.
Before I make any order, I will now address the husband’s application for costs. I have considered the affidavit material he has filed and take into account the paragraphs that are relevant to his application for costs. I also incorporate my findings in the above discussion regarding the wife’s costs application.
The Court understands that it is an expensive business instructing legal representatives and the husband is perfectly entitled to represent himself. He is entitled to do so with the assistance of a friend, if he wishes, either informally or as a Court approved McKenzie friend.
The costs claimed by the husband largely relate to the costs he incurred travelling with Ms T to [M], and here the husband faces a number of difficulties. As noted by Ms Annells, Ms T was a witness of the husband and was required for cross-examination in any event.
The issue of whether Ms T could nonetheless act as the husband’s McKenzie friend was raised at an interlocutory hearing on 3 August 2011. That issue was adjourned to the morning of trial precisely because of the difficulty in having someone who is a witness also act as a McKenzie friend. The wife objected to Ms T remaining in the Court room prior to giving her evidence and given the potential significance of Ms T’s evidence, the Court declined to allow her to remain present in the courtroom until her evidence was concluded.
From the husband’s perspective, he lost the possibility of Ms T’s assistance as a McKenzie friend across most of the hearing. The husband seems to be arguing that he should nonetheless be awarded that aspect of his costs associated with Ms T’s travel to [M] to assist him.
Even if the husband was able to have Ms T in the role as a McKenzie friend, I do not consider that would entitle him to claim her fees as legal costs. A party’s legal costs relate to the costs incurred with legal representation, or associated costs with expert witnesses and so on, not generally with the travel costs incurred by the party or their witnesses. Ms T is not a lawyer. Any costs that the husband paid for Ms T’s attendance are not legal costs in the strict sense.
As Ms Annells has pointed out, Ms T was not accepted as an expert witness. She was there as a witness supporting the husband’s case. It is not a situation where her fees, or any fees charged by her, could be seen as fees necessary for the husband to present his case, as opposed to fees incurred by the husband in order to present his case as he chose to present it, with Ms T as his primary supporting witness.
If the husband had been wholly successful and the wife wholly unsuccessful, then he could certainly have argued that his costs in attending for the trial should be paid by the wife and the Court would give consideration to that application within the context of s.117(1), (2) and (2A). Even in that context, I do not consider there is any aspect of s.117(2A), including any assessment of the wife’s general conduct in these proceedings, that would justify a costs order in favour of the husband.
The fact that Ms T’s evidence did not weigh strongly with me is neither here nor there. The reality is, she was not an expert witness, she is not a legal representative, and the husband’s capacity to pursue an order for her costs is not an option available to him, given my findings generally. Accordingly I order the husband contribute the sum of $10,000 towards the wife’s costs, together with an earlier unpaid costs order in the sum of $240. I dismiss the husband’s application for costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Kelly FM
Date: 17 January 2012
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