Whalan & Rapallo (No 2)
[2023] FedCFamC2F 505
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whalan & Rapallo (No 2) [2023] FedCFamC2F 505
File number(s): MLC 852 of 2017 Judgment of: JUDGE GLASS Date of judgment: 4 May 2023 Catchwords: FAMILY LAW – COSTS – Parenting proceedings – where offer of settlement not reflected in final outcome – whether lack of success justifies an order for costs Legislation: Family Law Act 1975 ss 117, 117(2A)
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 Sch 1
Cases cited: Davis & Peterson (2023) FLC 94-130
Hawkins & Roe (2012) 47 Fam LR 526
Murray & Murray (2020) FLC 94-000
Wrenstead & Eades (2016) FLC 93-697
Division: Division 2 Family Law Number of paragraphs: 10 Date of last submission/s: 27 April 2023 Date of hearing: In chambers on the papers Place: Melbourne Counsel for the Applicant: No Appearance Counsel for the Respondent: No Appearance ORDERS
MLC 852 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WHALAN
Applicant
AND: MS RAPALLO
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
4 May 2023
THE COURT ORDERS THAT:
1.Ms Rapallo pay Mr Whalan’s costs fixed in the sum of $2,607.
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 a pseudonym Whalan & Rapallo (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
On 20 February 2023, I made final parenting Orders in relation to X, born in 2015. Mr Whalan seeks his costs. The application is opposed by Ms Rapallo.
Pursuant to section 117 of the Family Law Act 1975 (Cth) (“the Act”), each party is to bear their own costs of proceedings under the Act. Nevertheless, the Court retains a discretion to make such order as to costs as it considers just, if there are circumstances that justify doing so, having regard to the matters prescribed by subsection 117(2A) of the Act.
Orders for costs are compensatory and not punitive.[1] They are not vehicles by which parties are held accountable for their forensic conduct in some retributive way.[2] The wide discretion to make an order for costs is not fettered by any distinction between financial and parenting cases,[3] although the usual rule that each party pay their own costs is not often displaced in parenting cases.[4]
[1] Duarte & Another and Morse (2019) FLC 93-902 at [573].
[2] Murray & Murray (2020) FLC 94-000 at [98].
[3] Wrenstead & Eades (2016) FLC 93-697 at [101] to [103].
[4] Hawkins & Roe (2012) 47 Fam LR 526 per May & Ainslie-Wallace at [14] and Thackray J at [162].
Mr Whalan firstly relies on an offer of settlement made by him in July 2022. In that offer, he proposed having sole parental responsibility for issues relating to X’s education and health, X living with the parties on a week about basis, and the parties entering into a binding child support agreement providing for the parties to pay no periodic child support to each other, and Mr Whalan paying for X’s education, extra-curricular and out of pocket medical expenses.
The final Orders provide for Mr Whalan to have sole parental responsibility for X, for X to live with him and spend alternate weekends with Ms Rapallo. They made no provision for child support. Those Orders are vastly different to Mr Whalan’s offer. By the time of trial, Ms Rapallo herself proposed that X live on a week about basis with his parents. By then, Mr Whalan’s proposal was different and the week about proposal was not found to be in X’s best interests. I am not satisfied that Mr Whalan’s offer to resolve the matter on an entirely different basis to the one now ordered justifies an order for costs in his favour, even if it could be said that the final outcome is more favourable to him.
Mr Whalan also submits that Ms Rapallo was wholly unsuccessful. Certainly that is the case, however, as I have already articulated, Ms Rapallo’s proposal at trial reflected Mr Whalan’s prior offer of settlement at least in terms of X’s living arrangements. Given her proposal at trial reflected what she then considered to be X’s best interests, I am not satisfied that her lack of success in advancing her perception of those interests justifies an order for costs.
Mr Whalan further submits that Ms Rapallo’s conduct in the proceedings justifies an order for costs. Certainly Ms Rapallo made a significant number of allegations against Mr Whalan which were not accepted by the Court. However, the single expert witness described Ms Rapallo as suffering from paranoia and paranoid ideation. Such an aetiology for the allegations is inconsistent with any suggestion that the allegations were malicious. In that circumstance I am not satisfied that Ms Rapallo’s conduct in the proceedings justifies an order for costs in favour of Mr Whalan.
I am not satisfied that the matters relied on by Mr Whalan generally justify an order for costs.
Mr Whalan also seeks his costs of Ms Rapallo’s failed adjournment application heard on 3 February 2023. With respect to that hearing, I accept Ms Rapallo was wholly unsuccessful, and I am satisfied that the circumstances justify an order for costs in Mr Whalan’s favour. I reject Ms Rapallo’s submission that a costs order relating to that event would be punitive. Whilst Ms Rapallo claims to be of modest financial means, impecuniosity is not a basis for the refusal to make a costs order.[5]
[5] Davis & Peterson (2023) FLC 94-130 at [75].
There are no exceptional circumstances relied on that would warrant an assessment of those costs on an indemnity basis. In accordance with the Court’s scale of costs, they ought be fixed in the sum of $2,607.[6] I find no warrant to allow the 60 months she seeks to make the payment.
[6] Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, Schedule 1, Items 4, 13 and 14.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 4 May 2023
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