Court Determines Costs for Appeal from Parenting Orders

Pascoe & Larsen (No 2) [2022] FedCFamC1A 126 (16 August 2022)

The appellant has been wholly unsuccessful in his appeal from parenting orders by the primary judge. An offer of settlement was made but particulars were not provided to the Court. The Court, in determining the costs, relied upon the Family Law Act 1975 (Cth).

Facts:

The primary judge dismissed an appeal brought by the appellant father from parenting orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia. Essentially, those orders provided for the parties’ child to continue living with the respondent mother in Sydney and to spend time with the appellant father both in City A and City B. The orders dismissing the appeal included an order permitting the respondent mother and the Independent Children’s Lawyer (“ICL”) to file such submissions in respect to costs as were considered appropriate, with such submissions to be filed within 14 days of the date of the orders. The appellant father was permitted to file and serve written submissions in reply within 14 days of the filing of the respondent mother or ICL’s submissions.

An application was duly filed by the respondent mother within the 14 days set out in the orders dismissing the appeal. However, the application for costs made by the ICL was not filed until 2 June 2022. While outside the time specified in the orders of 13 May 2022, it was nonetheless filed within the 28-day period specified in r 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).  The appellant father refers to his Financial Statement filed in the proceedings and contends that he is unable to meet his own legal costs, let alone the costs of the respondent mother. 

The appellant father contends that his initial commencement of proceedings occurred as result of the respondent mother unilaterally moving from City A in New South Wales to City B. The respondent mother contends that she has previously made an offer to the appellant father to resolve these proceedings, however neither party has referred the Court to the terms of that offer for the purpose of considering this costs application. The respondent mother has sought an order that costs be ordered on an indemnity basis. The respondent mother contends that the appellant father held wilful disregard of the known facts and clearly established law such that, properly advised, the appellant father should have known that he had no chance of success.

Issue:

Whether or not the costs should be assessed on a party/party basis.

Applicable law:

Family Law Act 1975 (Cth) s 117 - provides that each party to proceedings under this Act shall bear his or her own costs.

 

Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801 - provides that where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis.

 

Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68 - where the Full Court held that financial incapacity to pay a costs order is not a barrier to the making of such an order where the conduct of the party may warrant a costs order being made.

 

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64 - provides that the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges.

 

Phillips & Hansford [2020] FamCAFC 28 - provides that whilst the categories of cases in which indemnity cost orders may be awarded are not closed, it is accepted that such orders may be ordered where a case was pursued with “wilful disregard of known facts or clearly established law” and where there has been “an imprudent refusal of an offer to compromise”.

 

Robinson & Higginbotham (1991) FLC 92-209; [1991] FamCA 5 - stated that the concept of being wholly unsuccessful is “a situation in which the proceedings as a whole have been unsuccessful.

 

Stoian v Fiening (Costs) [2014] FamCA 944 - provides that 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.

Analysis:

The appellant father’s income may have been adversely impacted by the COVID-19 pandemic, however, it was the appellant father who chose to file an appeal against interim parenting orders in circumstances where the primary judge, in Order 14, granted leave to the parties “to file a further interim application in relation to parenting proceedings for [the child] in the event that the parties has [sic] a report from a joint expert providing information relevant to consideration of s 60CC(3)(h) and s 61F of the Family Law Act 1975.”  Although the appellant father was self-represented at the appeal, he had managed to engage the services of senior counsel to provide advice to him. 

The respondent mother contends that she presented the appellant father with an opportunity to resolve the matter but the appellant father rejected the offer, which resulted in the parties incurring the legal costs associated with the appeal. The respondent mother did not, however, provide particulars in respect to the offer, including when it was made and the nature of the offer. While the appellant father’s submissions, with respect, lacked focus at times, that was more reflective of the fact that he was self-represented rather than being wilfully obstructive of the expeditious determination of the proceedings. There is no basis for contending that the application had “no chances of success”. The case does not otherwise fall within the exceptional categories for which courts have ordered the payment of indemnity costs.

The difficulty in awarding costs in a fixed sum amount in this case is that the respondent mother’s costs have been quantified on an indemnity basis, or at least at an hourly rate that significantly exceeds that which is provided for in the costs schedule to the Rules.  In those circumstances, it is not possible to determine what is a logical, fair and reasonable fixed sum amount for costs as assessed on a party/party basis.

Conclusion:

The appellant father should pay the costs of the respondent mother of and incidental to the appellant’s Amended Notice of Appeal filed 15 December 2021 within 28 days of those costs being agreed or assessed.  The appellant father should pay the costs of the Independent Children’s Lawyer in the fixed sum of $4,150 within 28 days.

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