Whitby and Whitby

[2014] FamCA 1141

FAMILY COURT OF AUSTRALIA

WHITBY & WHITBY [2014] FamCA 1141

FAMILY LAW – COSTS – where the Respondent seeks costs in relation to interim applications – where such costs sought on an indemnity basis – where such costs were reserved to the trial judge.

Family Law Act 1975 (Cth) s117

D & D Costs (No 2) (2010) FLC 93-435.

APPLICANT: Mr Whitby

RESPONDENT: Ms Whitby

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 190 of 2009

DATE DELIVERED: 17 December 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: In Chambers on the papers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Whitbyway Legal

SOLICITOR FOR THE RESPONDENT: Whitehead Payne

THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. The Respondent’s Application that the Applicant pay her costs of and incidental to the two (2) Applications in a Case filed on 19 December 2012 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 190 of 2009

Mr Whitby

Applicant

And

Ms Whitby

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The parenting proceedings between the parties were finalised by Orders made on 18 October 2013. On that date, I ordered that any party seeking an order for costs file and serve written submission within fourteen days – namely, by 1 November 2013.

2. On 1 November 2013, the Respondent’s solicitor faxed written submissions to the Registry of this Court. They were not brought to my attention.

3. Rule 24.05 of the Family Law Rules (2004) relevantly provides that a document is filed if sent to the Court by electronic communication under Rule 24.06 and received by the Registry. Rule 24.06 provides that a document may be filed by facsimile if the matter is urgent, the number of pages is not more than 25 and it is not practicable to lodge the document in the filing Registry in any other way because the filing party is represented by a lawyer whose principal office is more than 20 kilometres from the Registry.

4. The matter clearly was not urgent: I gave the parties fourteen days within which to file any submissions seeking an order for costs. The document sent by facsimile contained significantly less than 25 pages. Whilst the Respondent’s solicitors’ principal office is more than 20 kilometres from the Registry, I do not accept that, in circumstances where there was a lack of urgency, it was not practicable to lodge the written submissions seeking costs in any other way.

5. No sensible criticism could be made of the Registry in these circumstances.

6. The matter was listed for mention before me on 19 November 2014. On that day, I ordered the Respondent file and serve any written submissions in support of an application for costs by 28 November 2014 and that the Applicant file and serve any submissions in response by 12 December 2014.

7. The Respondent filed written submissions seeking indemnity costs in relation to two Applications in a Case, each filed 19 December 2012 (the Applications). The Applications sought a review of Orders made by the Principal Registrar on 29 November 2012 and that the operation of the same be stayed pending such review.

8. On 29 November 2012, the Principal Registrar varied previous parenting Orders to provide that, on an interim basis, the child spend time with the Applicant from after school Friday until 5.00 pm Saturday. This decreased the child’s time with the Applicant.

9. When the Application for a stay of the operation of the November 2012 Order came before the Principal Registrar on 6 March 2013 – some five weeks before the matter was to proceed to trial - the Applicant’s solicitor sought and was granted leave to withdraw the Applications. The Principal Registrar then reserved the issue of the costs associated with these Applications to the trial Judge.

Applicable principles

1. Section 117(1) of the Family Law Act 1975 (Cth) (the Act) provides that each party to proceedings under the Act shall bear his or her own costs. However, if the Court is satisfied there are circumstances which justify it, the Court may make such order as to costs as it considers just.[1]

   [1] Section 117(2) Family Law Act (1975) (Cth).

2. In considering what order, if any, as to costs should be made, the Court must have regard to the matters set out in s 117(2A) of the Act.

3. It is uncontroversial that:

   a)neither party was in receipt of legal aid; and

   b)the Applicant is in receipt of Centrelink benefits and pays limited child support; and

   c)the Respondent, who is in paid employment, meets “basically all” of the child’s day to day needs and expenses from her income; and

   d)save as discussed below, the conduct of both parties in the proceedings was unremarkable; and

   e)the proceedings were not necessitated by the failure of a party to comply with previous Orders of the Court; and

   f)there were no offers in writing to settle the Applications.

The Respondent’s submissions

1. The Respondent submits the Court would be persuaded the circumstances justify the making of an order that the Applicant pay her costs of and incidental to the Applications because:

   a)had the Applicant withdrawn them before the morning of 6 March 2012, she would not have incurred the costs associated with her solicitor appearing at the hearing on her behalf; and

   b)the Applicant should properly have withdrawn both Applications as soon as he became aware they had return dates five and three weeks prior to the start of the trial because any orders he might have obtained at the hearing of the Applications would only have been operative for a very short time in any event.

2. The Respondent also submits that the Court should take into account that the Applicant was wholly unsuccessful in his application for parenting orders because the Court imposed supervision over his time with the child rather than increasing it as he sought. However, such submission would be more properly directed to costs associated with the trial rather than with the Applications.

The Applicant’s submissions

1. The Applicant opposes the making of any order for costs. He asserts the Court would not be persuaded circumstances justify the making of an order he pay the Respondent’s costs of and incidental to the Applications because:

   a)he commenced his applications in a case in good faith, contending that the orders he sought were in the best interests of the child; and

   b)it was not inappropriate that he seek to review and stay the operation of the November 2012 Order because, whilst the trial was only a number of weeks away, interim parenting orders would remain operative until final orders were pronounced – an event which may have taken up to twelve months; and

   c)the Respondent’s solicitor was required to attend Court on 6 March 2013 in relation to another matter; and

   d)he makes financial contributions to the support of the child as he can, given that he receives a disability pension; and

   e)whilst he was legally represented, this representation was provided on a pro bono basis.

Discussion

1. I accept the Applicant commenced his application seeking a review of the November 2012 Order and a stay of the operation of the same pending the review in good faith. Whilst it is understandable for the Respondent to assert, with the benefit of hindsight, that the Applicant should have discontinued such applications soon after he became aware that they were returnable only weeks before the trial date, it is also understandable that he is likely to have wanted to be sure that the matter would proceed to trial as listed.

2. I am not persuaded that the circumstances justify making an order that the Applicant pay the Respondent’s costs of and incidental to the Applications.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 17 December 2014.

Associate:     

Date:              17 December 2014