Vukoja and Vukoja (No 3)

[2020] FamCA 676

FAMILY COURT OF AUSTRALIA

VUKOJA & VUKOJA (NO. 3) [2020] FamCA 676

FAMILY LAW – COSTS – Where application for costs arising from undefended parenting proceedings – Where consideration of applicable principles – Where order for costs made in a fixed sum.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Collins & Collins (1985) FLC 91-603
Greedy & Greedy (1982) FLC 91-250
Hawkins & Roe [2012] FamCAFC 77; (2012) 47 Fam LR 526
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka & Luadaka (1998) FLC 92-830
Parke & the Estate of the Late A Parke (2016) FLC 93‑748
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Vukoja

RESPONDENT: Mr Vukoja

FILE NUMBER: PAC 129 of 2018

DATE DELIVERED: 14 August 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: By way of written submissions last received 3 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms De Vere

SOLICITOR FOR THE APPLICANT: Nikola Velcic & Associates

SOLICITOR FOR THE RESPONDENT: John & Co Lawyers

Orders

1. The father pay the mother’s costs of and incidental to the proceedings in the sum of $15,000 within one month from this date.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vukoja & Vokoja has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 129 of 2018

Ms Vukoja

Applicant

And

Mr Vukoja

Respondent

REASONS FOR JUDGMENT

1. The application for determination is an application for costs made by the applicant mother arising from parenting proceedings between her and the respondent father heard on an undefended basis on 16 June 2020. Reasons for Judgment were reserved on this date and an order was made for the mother to file and serve a short outline of submissions as to costs and as to the quantum of costs by 3 July 2020.

2. The mother forwarded submissions as to costs on 3 July 2020 and judgment as to costs was subsequently reserved.

3. On 3 August 2020 the Court published its Reasons for Judgment in relation to the undefended parenting hearing and made orders as follows:

   (1)That the mother have sole parental responsibility for the three children of the marriage namely X born in 2011, Y born in 2013 and Z born in 2017 (“the children”).

   (2)That the children live with the mother.

   (3)That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the father, Mr Vukoja:

   (a)Be and is hereby restrained from approaching within 100 metres, entering upon or interfering in any way with the property situate at and known as B Street, G. in the state of New South Wales and the property situate at D Street, F Town in the state of New South Wales;

   (b)Be and is hereby restrained from attending G School, G. and H Centre, Suburb J;

   (c)Be and is hereby restrained from causing or threatening to cause bodily harm to the mother; and

   (d)Be and is hereby restrained from harassing, molesting or stalking the mother or the children or any of them.

   (4)That order 3 is for the personal protection of the mother Ms Vukoja and the children X, Y and Z and the powers of arrest under s 68C of the Act apply.

Costs

1. Section 117 of the Family Law Act 1975 (Cth) provides that each party to the proceedings shall bear his or her own costs.

2. That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.

3. Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: Penfold v Penfold (1980) 144 CLR 311.

4. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are as follows:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party has legal aid and the terms of any grant of aid;

   (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 answers, 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.

5. In Collins & Collins (1985) FLC 91-603 (at 79,877), the Full Court described the discretion conferred by s 117 as being a “broad” one and held that the factors set out in s 117(2A) are not to be read in a restrictive way.

6. The Full Court in Hawkins & Roe [2012] FamCAFC 77; (2012) 47 Fam LR 526 said:

   17.With respect to the application of the section, in Penfold v Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:

   1.Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".

   2.Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

   (footnotes omitted)

   18.The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:

   … A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

7. In Greedy & Greedy (1982) FLC 91-250 and Luadaka & Luadaka (1998) FLC 92-830, the Full Court made clear that it is unnecessary to spell out detailed reasons for decisions in costs matters.

8. The provision relating to the calculation of costs is set out in r 19.18(1) of the Family Law Rules 2004 (Cth) which states:

   Method of calculation of costs

   (1)The court may order that a party is entitled to costs:

   (a)of a specific amount;

   (b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);

   (c)to be calculated in accordance with the method stated in the order; or

   (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

9. It was said in Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160 at [162] that the purpose of the rule enabling an order for costs in a specific amount, without formal assessment or taxation is, commonly with other courts, to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation”.

10. In Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 the Court said at [10] that the Court must act judicially, but that does not mean that it must exercise the power to award a lump sum in any “scientific or formulaic manner”.

11. Murphy J observed in Parke & the Estate of the Late A Parke (2016) FLC 93‑748 at [130]:

    If the court is to fix a sum it should be “fixed broadly having regard to the information before the Court”… The process does not “by its very nature … envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place”…

The mother’s application

1. The mother seeks an order for costs in the sum of $22,701.13 having incurred total costs of $34,482.88 in the parenting proceedings.

2. The mother has the sole care and is entirely financially responsible for the parties’ three young children.

3. The mother asserts that the father’s lack of engagement in the proceedings has caused her to expend unnecessary costs. She sets out in detail the number of occasions the father failed to attend court events, attended late and/or sought that the proceedings be adjourned, causing delay in the resolution of the proceedings. She also details the number of occasions the father failed to comply with directions to file documents resulting in further delays and thus further costs for her.

4. The mother contends that she has been put through significant distress in these proceedings amplified by the father’s blatant disregard to directions made by the Court and refusal to engage in the proceedings yet at times sought to frustrate the proceedings.

5. It is also submitted on behalf of the mother that her legal representatives sought to engage with the father on each occasion that the matter was before the Court to resolve the proceedings but without success.

Discussion

1. The mother was successful in her application with all orders made in terms sought by her except for an order that the children spend no time with the father. The Court remained silent on this issue of time with the father such that the mother has the discretion, in exercise of her parental responsibility, to determine whether the children spend any time with the father in the future. In these circumstances some weight should be attached to the overall success of the mother in attaining the orders sought by her.

2. A consideration of the aforementioned factors, particularly the father’s lack of engagement in the proceedings and the delay resulting from his actions, leads to a conclusion that there are circumstances justifying a departure from the general rule as to costs.

3. In the circumstances of this matter and where the father has failed to engage it is not appropriate to the mother to go through yet another application for assessment of costs. Costs will be fixed in the sum of $15,000.

4. An order will be made accordingly.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 August 2020.

Associate: 

Date:  14 August 2020