Williams & Hatheway (No 4)

[2022] FedCFamC1F 453

Federal Circuit and Family Court of Australia

(DIVISION 1)

Williams & Hatheway (No 4) [2022] FedCFamC1F 453

File number(s):

SYC 7523 of 2013

Judgment of:

REES J

Date of judgment:

29 June 2022

Catchwords:

FAMILY LAW – COSTS – Where the mother was found to have contravened parenting orders – Mother to pay $2,000 toward the father’s costs of the Application – Contravention.

Legislation:

Family Law Act 1975 (Cth) s 117(2A)

Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Prantage & Prantage (2013) FLC 93-544

Division:

Division 1 First Instance

Number of paragraphs:

20

Date of last submission/s:

17 June 2022

In Chambers:

29 June 2022

Place:

Sydney

Applicant:

Litigant in person

Respondent:

Litigant in person

ORDERS

SYC 7523 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR WILLIAMS
Applicant

AND:

MS HATHEWAY

Respondent

order made by:	REES J
DATE OF ORDER:	29 June 2022

THE COURT ORDERS:

1.That within six months of the date of this order, the respondent mother pay to the applicant father the sum of $2,000 by way of a contribution to the costs of the Application – Contravention filed 16 December 2020.

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 Williams & Hatheway has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

REES J:

1. Mr Williams (“the applicant”) and Ms Hatheway (“the respondent”) are the parents of Z who is now nine years old.

2. On 11 April 2019, orders were made in defended parenting proceedings which regulated the time that Z was to spend with the applicant. Further orders were made on 13 May 2020.

3. On 16 December 2020, the applicant filed an Application – Contravention alleging 20 counts of contravention by the respondent of those orders.

4. That application was heard by a Senior Judicial Registrar on 5 October 2021 and a finding was made that the respondent contravened orders between 6 September 2020 and 2 December 2020. The respondent was ordered to enter into a bond for a period of 12 months to be of good behaviour and to obey the current and future parenting orders.

5. The applicant now seeks an order that the respondent pay his costs of the contravention proceedings on an indemnity basis or, in the alternate, on a party and party basis.

6. Both parties have filed written submissions and an affidavit of evidence.

7. The applicant, who acted for himself but briefed counsel to appear at the hearing, deposed that he has incurred counsel’s fees of $13,508 and fees for service of process of $165.

8. The application, which is opposed by the respondent, is governed by the provisions of section 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) which provides:

   (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.

9. The applicant relies on a Financial Statement sworn by him on 3 November 2021. He deposed that he earned $1,233 per week of which $750 was from JobKeeper. He owns his unit which he estimated to be valued at $430,000 with a mortgage of $324,500. He has a car which is subject to a loan agreement and minimal superannuation. He had about $48,000 in bank accounts. He owes the Australian Taxation Office about $20,000. His mortgage payments, rates and levies cost $413 per week.

10. The respondent is not presently employed. She is in receipt of Centrelink payments and a JobSeeker allowance. There is no evidence of the equity she currently has in her home but I accept her submission that to require her to sell her home, in which the child lives, in order to meet a costs order in these circumstances would be disproportionate.

11. Neither party was legally aided in the contravention proceedings.

12. On 1 November 2020, the applicant wrote to the respondent’s then solicitor, notifying her that, if she continued to breach the parenting orders, he would file an application. The application was filed on 16 December 2020. The application was adjourned on the application of the respondent on the first return date, 7 July 2021, she not having filed in response.

13. Ultimately, the respondent was unsuccessful in that she was found to have contravened orders.

14. When considering whether an order for indemnity or solicitor/client costs would be appropriate, it is instructive to revisit the decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 (“Colgate-Palmolive Co v Cussons”) where his Honour reviewed the authorities and said:

    4. …The tests have been variously put. The Court of Appeal in Andrews v Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo: “the categories in which the discretion may be exercised are not closed”. Davies J expressed (at 6) similar views in Ragata.

    5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; MaitlandHospital v Fisher (No 2) (1992) 27 NSWLR 721 ay 724 (Court of Appeal); Crisp v Keng (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.

15. The Full Court of the Family Court of Australia (as it was then known) considered the law in relation to indemnity costs in Prantage & Prantage (2013) FLC 93-544 (“Prantage”). The majority (Thackray and Ryan JJ) set out the principles to be applied, holding that the principles enunciated by Sheppard J in Colgate-Palmolive Co v Cussons should continue to be applied in the Family Court of Australia (as it was then known).

16. I am not satisfied that the mere fact that the applicant succeeded in his Application – Contravention is sufficient to place this case in that category of “special or unusual” cases which justify the making of an order for indemnity costs.

17. However, a consideration of the matters in s 117(2A) of the Act which are set out above leads to the conclusion that the respondent should make some contribution to the applicant’s costs of the Application – Contravention and she will be ordered to pay him $2,000, such payment to be made within six months of the date of these orders.

18. I note that the applicant also seeks an order that his contribution to the costs of the Independent Children’s Lawyer (“ICL”) be waived and that the hearing fees in the sum of $2,700 be waived.

19. Orders were made on 5 July 2019 that the applicant pay $6,836 towards the costs of the ICL. That order having been made, it cannot be varied by waiver other than by consent and I am not aware that the ICL has consented. No appeal against that order was filed and the time for appeal has long passed.

20. In relation to the hearing fees, waiver of those fees is an administrative act, not a judicial act and I have no power to grant that application.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       29 June 2022