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SELF-REPRESENTED APPLICANT SEEKS COSTS ORDER AGAINST THE WIFE ON AN INDEMNITY BASIS

Hewson & Hewson [2020] FCCA 2886 (23 October 2020)

This case involves an applicant-father who is self-represented during the parenting proceedings seeking for costs order on an indemnity basis.

Facts:

The parties to these proceedings are the applicant father Mr Hewson and the respondent mother Ms Hewson. There is one child of the relationship, namely, X born 2018. X lives with the applicant pursuant to final orders of this Court.

The applicant pressed the Court to make an order for costs as sought by him in his Amended Initiating Application filed being, “that the mother, Ms Hewson pay to the Father, Mr Hewson all associated costs incurred in this court matter”.

The total amount of costs the applicant is seeking from the respondent mother is $14,565.89. The applicant in effect, seeks an order for costs on an indemnity basis.

The applicant submits that an order for costs should be made as sought by him for the following reasons:

1. The respondent failed to attend mediation resulting in the applicant’s necessity to commence court proceedings;

2.The respondent’s failure to file documents as ordered by the Court; and

3. The respondent’s failure to attend and participate in Court proceedings.

In addition the applicant submits that he has not received any child support payments from the respondent as assessed by the Child Support Agency.

Issue: Should the court grant the costs order sought by the appllicant?

Law:

  • Rule 21.02(2) Federal Circuit Court Rules 2001provides that in making an order for costs the Court may set the amount of costs; or set the method by which the costs are to be calculated; or refer the costs for taxation.

Analysis:

The Court finds, for reasons outlined below, that there are circumstances justifying the making of a costs order, but not an order for costs on an indemnity basis.

The applicant is employed as a mechanic and he is the full-time carer for the parties’ only child, who was the subject of the substantive parenting proceedings. He does not receive any child support from the respondent. The parties’ financial circumstances are otherwise not the subject of any evidence.

It is not appropriate, given that the applicant was not legally represented after the proceedings commenced that he be awarded any costs for the hearing fee on either the first court date or any subsequent court date. Apart from the documents filed at the time of the Initiating Application there do not appear to be any other documents filed by the applicant’s legal representatives on his behalf.

It is appropriate that costs be ordered in accordance with item 2 of Schedule 1 of the Federal Circuit Court Rules 2001, in the amount of $2,802 being costs for initiating an application which includes interim orders, up to the completion for the first court date.

Conclusion: Court orders that within six months of the date of these orders, the respondent is to pay the applicant’s costs in the amount of $2,802.

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