ABARA & SCANLAN (No.2) - [2020] FCCA 3005

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABARA & SCANLAN (No.2)

[2020] FCCA 3005

Catchwords:
FAMILY LAW – Ruling on costs application.

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Rice v Asplund (1979) FLC 90-725

Spencer & Spencer (No. 3) [2020] FamCA 145

Applicant:

MS ABARA

Respondent:

MR SCANLAN

File Number:

DGC 2345 of 2017

Judgment of:

Judge Burchardt

Hearing date:

31 August 2020

Date of Last Submission:

18 September 2020

Delivered at:

Dandenong

Delivered on:

13 November 2020

REPRESENTATION

Counsel for the Applicant:

Self-Represented

Solicitors for the Applicant:

Not Applicable

Counsel for the Respondent:

Ms Mansfield

Solicitors for the Respondent:

Walls Bridges Lawyers

ORDERS

The wife pay the husband’s costs fixed at $8,442.

IT IS NOTED that publication of this judgment under the pseudonym Abara & Scanlan (No.2)is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2345 of 2017

MS ABARA

Applicant

And

MR SCANLAN

Respondent

REASONS FOR JUDGMENT

This is an application for costs by the husband, it is resisted by the wife. The sum sought is $8,442, this being the figure on the Court’s scale of fees.
The matter has a long and unfortunate history. The applicant husband’s initiating application was originally lodged on 28 July 2017, and in due course, following the appointment of an Independent Children’s Lawyer, final orders were made on 29 March 2018. The wife did not participate in most of the hearings leading up to the final orders being made and did not attend on 29 March 2018. Pursuant to those orders the two children of the relationship lived with the father and the wife’s time with the children was essentially reserved (it was described as agreed between the parties in writing).
Property orders were made, the relevant substance of which was that the husband would pay the wife a cash sum of $60,000. There was an annotation to the orders that “the mother is to engage with psychiatrists and psychologists and remain fully compliant with any prescribed medication and recommended treatment for any mental illness and provide proof of such fact from her treating medical practitioner to the father, in order for her to resume any substantial and significant time with the children”
Those orders were varied on 22 October 2018, the wife once again not participating, and owing to non-compliance on the wife’s part a further order for a warrant of possession was made on 20 November 2018.
Thereafter no materials were filed in the Court until 17 January 2020 when the wife filed an initiating application seeking that she spend time with the children. The wife’s accompanying affidavit (she was legally represented at the time) pointed to the fact that she had not been permitted to spend time with the children since the 2018 orders. She also deposed to having engaged with a psychologist and that she continued to engage with her general practitioner.
The husband’s response filed 12 March 2020 sought the dismissal of the application. The affidavit filed by the husband plainly raised the question of a Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”) objection (see paragraph 69). On 17 March 2020 the matter returned to court and the matter was adjourned with the father’s costs being reserved. On 31 August 2020 the matter came back before the Court and I dismissed all extant applications and made a timetable for the provision of submissions as to costs. One of the applications dismissed was the wife’s application in a case filed 6 May 2020 in which she sought a change of judge, the transfer of the matter to the Melbourne registry and an order that Victoria legal aid fund a psychiatric report into the mother’s health.
The husband’s written submissions point to the history of the matter. The written submissions accurately paraphrase at paragraphs (6) and (7) what the parties said by way of submission. The written submissions note that the applicant wife had been put on notice of the likely making of a cost application, and annex a letter to the wife’s then solicitors dated 2 March 2020. This letter plainly alerted or should have alerted the wife to the fact that a Rice v Asplund point would be taken, however, it is also said that the husband did not object to the wife seeing the children provided an appropriate psychiatric assessment was undertaken and with an appropriate beneficent result.
The written submissions note that the wife’s affidavit material suggests that she had been employed as a professional in a business that receives financial support from the government and the fact that the applicant had referred to herself in submissions as a professional. The husband’s income is approximately $140,000 per year but he has the two children in his full-time care and significant financial responsibilities. The submissions point to the total lack of success of the mother’s applications.
The mother has filed two tranches of materials. The first was addressed to Ms O’Kane (solicitor for the husband) dated 10 September 2020. My associate sought clarification and Ms Abara sent a further email dated 18 September 2020. It has to be said that the documents, while extensive, are difficult to construe. The second document appears to seek an adjournment when it states:
Since I’m not clear about the process of written submissions for costs, I will have to request a legal representative to assist in the provision of advice in relation to the mentioned.
Please understand the situation in relation to my financial situation is mentioned to Ms Mansfield in an email that was also sent to the Judge’s Associate is that I cannot afford the costs and are going to dispute the decision.
Given that the wife is apparently professionally qualified, her lack of understanding about the process for written submissions on costs is surprising since it was spelled out in the orders that I made. Insofar as it seeks an adjournment there is no utility to granting an adjournment as the relevant matters are in my view already clearly before the Court in any event. Further, given the history of the matter, I have no confidence whatsoever that an adjournment would in fact lead to Ms Abara obtaining legal representation in relation to this discrete issue. I note that the wife says she was not in a position to pay any costs order made against her.
Having traversed the materials in this admittedly slightly broad-brush way I come to the terms in section 117 of the Family Law Act 1975 (Cth). The general rule is that each party bears their own costs (section 117(1)). The Court may, however, if there are circumstances that justify it in doing so, and subject relevantly to subsection 117(2A), make such orders as to costs as the Court considers just. Turning to the terms of section 117 (2A) the husband’s financial circumstances appear to be that he is in receipt of a large income but he has the care of two children without financial support from the wife and his circumstances appear to suggest that the payment of costs may be difficult for him. Beyond the wife’s assertion that she has not the money to pay any costs order the Court has really nothing by way of information of any meaningful sort from her. Having said this, however, as the Full Court observed in Spencer & Spencer (No. 3) [2020] FamCAFC 145 at [128]:
“impecuniosity ought not be a bar to an order for costs where a meritless application puts the other party to expense”.
Neither party is in receipt of legal aid (section 117(2A)(b)).
The mother’s conduct of this proceeding has been unsatisfactory. The notations made to the orders in 2018 made it clear what the mother had to do to obtain time with the children. Indeed, this was spelled out again in clear terms to her in the letter from the husband’s solicitors dated 2 March 2020. The mother has at no time, despite the somewhat extensive materials she has filed, got to grips with the preconditions that were necessary for her to address in order to pursue her claim for time with the children. Furthermore, the mother left the court room on 17 March 2020 because submissions may have upset her and did not remain to hear the Court’s remarks as to how the matter would proceed (section 117(2A)(c)).
These proceedings were not necessitated in one sense by the failure of a party to the proceedings to comply with the previous orders of the Court. It was the mother herself who brought the application. Nonetheless, she did so clearly without having addressed the matters that the notations in 2018 foreshadowed (section 117(2A)(d)).
The mother has been entirely unsuccessful in the proceedings and it is not necessary to say more than that save that the materials filed by the mother only go to buttress the reservations inherent in the notations made in 2018 (section 117(2A)(e)).
The husband did make an offer to resolve the proceeding and in terms that were beneficent to the mother’s position in the without prejudice letter sent on 2 March 2020. The mother was legally represented at the time and it is reasonable to suppose that she was appropriately advised about the matter. Whether this was so or not however is neither here nor there. What matters is that the letter sent by the lawyers for the father provided a clear and unequivocal offer to settle on terms that were clearly far more generous to her than the result that obtained.
In all of these circumstances in my view the application for costs is irresistible. Costs have only been sought on a party-party basis and I will make an order accordingly.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 13 November 2020