Zhong & Yao (No 4)
[2024] FedCFamC1F 263
•1 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zhong & Yao (No 4) [2024] FedCFamC1F 263
File number: SYC 1477 of 2019 Judgment of: SCHONELL J Date of judgment: 1 May 2024 Catchwords: FAMILY LAW – COSTS – Where the Independent Children’s Lawyer (“the ICL”) sought a costs order – Where the respondent did not comply with the Court’s directions or make costs submissions – Where notwithstanding absence of evidence regarding a parties’ financial circumstances, impecuniosity is not a bar to the making of a costs order – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Where the proceedings were dismissed due to a failure to comply with directions – ICL’s costs ordered in a fixed sum, to be paid within three months. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207
Pascoe & Larsen (No 2) [2022] FedCFamC1A 126
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4
Zhong & Yao (No 3) [2024] FedCFamC1F 1
Division: Division 1 First Instance Number of paragraphs: 22 Date of last submission/s: 27 March 2024 Date of hearing: Determined on the papers Place: Sydney The Applicant: Did not participate The Respondent: Did not participate Counsel for the Independent Children’s Lawyer: Ms Edwards Solicitor for the Independent Children’s Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
SYC 1477 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZHONG
Applicant
AND: MS YAO
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
1 MAY 2024
THE COURT ORDERS THAT:
1.The respondent wife is to pay the costs of the Independent Children’s Lawyer assessed in the sum of $4,025, such sum to be paid within three months of the date of these Orders.
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 the pseudonym Zhong & Yao has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 18 March 2024, as a consequence of a failure by the husband and wife to comply with court directions, all relief before the Court was dismissed. Consequent upon the dismissal of the relief, the Independent Children’s Lawyer (“the ICL”) made an application for costs in the sum of $8,050, with such sum to be shared equally between the parties. The ICL was directed to file written submissions, together with a schedule setting out how the costs were calculated.
The ICL duly filed written submissions, as well as a schedule setting out the basis upon which the costs were calculated. The husband and wife were directed to file, within a further seven days, written submissions as to costs.
Entirely consistent with the way in which they have conducted the proceedings to date, neither the husband nor the wife complied with the directions. With that said, the husband subsequently paid half of the amount sought by the ICL.
Where a party has not complied with the Court’s directions, they cannot be heard to complain when the Court determines the matter in the absence of their submissions.
An application for costs is governed by the provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”), which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) of the Act reposes in the Court a discretion to make a costs order if the Court determines there are circumstances that justify this and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A) of the Act.
In Penfold and Penfold (1980) 144 CLR 311 at 315, the plurality in the High Court determined that to make an order under s 117(2) of the Act, the Court needs to make a finding of “justifying circumstances” as a preliminary prerequisite to the making of an order. Their Honours also observed that “a clear case” is not necessarily a determiner of whether an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
It is well-settled law that no one factor in s 117(2A) is determinative, and the Court may give such weight, as it considers relevant, to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 at [41], the Full Court observed:
… Nowhere in subsection 2(A) or elsewhere in section 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 subsection 2(A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
(a) The financial circumstances of each party to the proceedings
There is no evidence before the Court as to the financial circumstances of the wife. Notwithstanding a failure to provide this evidence, impecuniosity is not a bar to the making of a costs order: Cross & Beaumont (2008) 39 Fam LR 389 at [60] and Nada & Nettle (Costs) (2014) FLC 93-612 at [11].
(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 assistance to that party
Neither party is in receipt of a grant of legal 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 answer questions, admissions of facts, production of documents and similar matters
The wife has not complied with directions. In that respect, context to that matter can be gleaned from my judgment in Zhong & Yao (No 3) [2024] FedCFamC1F 188.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
This section is not relevant.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
On one view, the wife was wholly unsuccessful in the proceedings in that the Court dismissed her relief.
(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
This section is not relevant.
(g) Such other matters as the Court considers relevant
The ICL has incurred costs which, as a consequence of the failure of the wife to comply with directions, are entirely wasted.
I am satisfied that this is a circumstance justifying an order for costs. A party who elects not to comply with court directions does so at their peril. There is no evidence before me that the wife would suffer hardship by the making of an order.
The ICL seeks that the parties equally share her costs. The wife’s portion of the costs sought by the ICL amounts to $4,025.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and authorities make plain that I can fix an amount for costs. As McClelland DCJ observed in Pascoe & Larsen (No 2) [2022] FedCFamC1A 126:
27.Rule 12.17 of the Rules sets out the methods of calculating costs. These include the Court fixing a specific amount for costs (r 12.17(1)(a)) or an order for the costs to be assessed on a particular basis (r 12.17(1)(b)).
28.In Stoian v Fiening (Costs) [2014] FamCA 944 at [91], Kent J endorsed the principles for applying a rule equivalent to r 12.17 when referring to r 19.18 of the now repealed Family Law Rules 2004 (Cth) as adumbrated by Einstein J in Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23 at [9]. Those principles include:
i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation;…
ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable;…
iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available;…
iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place;…
iv.the gross sum “can only be fixed broadly having regard to the information before the Court”;…
(Citations omitted)
29.Consistent with those principles, it has been determined that where a Court orders a party to pay costs, it may be appropriate for the Court to fix a lump sum. By doing so, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51].
Having regard to the costs sought, the breakdown of the basis on which they are incurred, and the authorities to which I have referred to earlier, I am satisfied that it is appropriate to fix costs in a lump sum. Doing so avoids further delay, inconvenience, and further costs to the parties. I accept that it involves a broad assessment on the basis of the information before the Court.
I am satisfied that $4,025 is an appropriate sum for the wife’s share of the ICL’s costs.
I am also satisfied that an order should be made in that sum to be paid by the wife.
I do not propose to make an order that the sum be paid in 28 days and propose to grant the wife three months in which to make her payment.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 1 May 2024
0
6
2