Abbey & Crowne (No 2)

[2014] FamCA 694

FAMILY COURT OF AUSTRALIA

ABBEY & CROWNE (NO. 2) [2014] FamCA 694

FAMILY LAW – COSTS – Circumstances Justifying Order – Where court considered section 117 – Where mother sought payment of costs she incurred during the period she was represented in the course of substantive proceedings – Where in weighing all matters the court was not satisfied there were circumstances that justify the court making an order as to costs – Where the court held the ordinary rule should apply, namely that each party bear their own costs.

Family Law Act 1975 (Cth) s117

APPLICANT: Ms Crowne

RESPONDENT: Mr Abbey

FILE NUMBER: CSC 691 of 2008

DATE DELIVERED: 19 August 2014

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 19 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITORS FOR THE RESPONDENT: Ms Sandra Sinclair

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abbey & Crowne (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 691 of 2008

Ms Crowne

Applicant

And

Mr Abbey

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application in a case file of 19 June 2014 the mother seeks payment of costs which she incurred in the course of the substantive proceedings.  Although for most of the time in the litigation she was representing herself, in about July 2013 she commenced to instruct solicitors.  She expended upon those solicitors a sum of $14,131.22.  That sum is said to be the costs of her solicitors from about July 2013 until the conclusion of the matter before Kent J on 20 May 2014. 

2. It appears as though ultimately the matter substantially settled by consent in front of his Honour, with only one small, or relatively small, point left in contention between the parties which needed judicial resolution, namely whether any time spent by the children with their maternal grandfather, Mr D, should be supervised by either the father or his current wife.  Ultimately that matter was resolved in the mother’s favour, and I note that at paragraph 50 of Justice Kent’s reasons his Honour said as follows:

   In my judgment there would probably be an adverse effect upon the capacity of the mother to provide for the children in terms of the statutory consideration referred to if in future she remained anxious, concerned or worried about the prospect of her father again involving himself in the family dynamics in a way similar to that which has occurred giving rise to these proceedings and degree of hostility impacting upon the children.

   He concluded that therefore it was in the best interests of the children that the orders contended for by the mother should be made. 

3. As I have said, the $14,000 claimed by the mother was only the sum expended by her after the solicitors retained in July 2013.  Although the mother contended that from that time the only issue in dispute was the maternal grandfather’s time, if any, and the circumstances of any time that he spent with the children, in fact it appears from the submissions of Ms Sinclair, who appeared as solicitor for the father, that on the first occasion that the mother’s solicitors appeared in this Court, they then advised that the mother was not ready for trial, and that she was still intending to press her application to relocate, and seeking sole parental responsibility in relation to the children. 

4. Against that background I turn to consider the statutory provisions.  The starting point is section 117(1) which provides that:

   Subject to subsection (2) [and other provisions which are not presently relevant] each party to proceedings under this Act shall bear his or her own costs.

   Subsection (2) provides that:

   If, in proceedings under this Act the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A) [and other provisions which are not presently relevant] make such order as to costs and security for costs … as the Court considers just.

5. The criteria listed in section 117(2A) are well known and I will traverse those in the order that they there appear. 

6. The first is subparagraph (a), being the financial circumstances of each of the parties to the proceedings.  The mother discloses that in 2013 she had a taxable income of $6,362.  There is no evidence as to such assets as she may own or any liabilities attaching to them.  It appears as though she has remarried.  Her husband’s income is said to be $71,697 and it appears as though he owns three encumbered real properties.  Even taking that into account, there is nothing from that that would suggest that the mother necessarily derives any benefit from the husband’s income or his properties, although perhaps she does. 

7. There is no statement of assets and liabilities in relation to the father.  The highest that the material goes in that respect is an oblique assertion in his affidavit filed in July this year that he has some credit card debts and otherwise is in something of a financial muddle. 

8. The mother deposes that in order to fund the legal costs in question she needed to borrow, and I accept that evidence, which to an extent that informs me as to her financial circumstances.  Nonetheless, given the paucity of material I can make little by way of conclusion as to the parties’ financial circumstances other than that both appear to be in relatively straitened circumstances. 

9. As to subparagraph (b), neither party were in receipt of legal aid.  As to subparagraph (c) the mother and the father both rely upon the fact that an issue in these proceedings was the extent to which the maternal grandfather was funding the father’s pursuit of the litigation.  The mother says that it was that involvement which impeded settlement.  The father, on the other hand, says that the financing of the father’s legal fees was not a matter that was directly relevant to the best interests of the children, and therefore the mother’s pursuit of that question was one which did not assist in the resolution of the proceedings. 

10. Upon balance, it seems to me as though, indeed, the conduct of the mother in pressing this did impact upon the litigation, in that it made it more complex and perhaps longer, than it otherwise needed to be. 

11. Subparagraph (d) is not said to be relevant by a party, and (e) is not said by the mother to be relevant, although I note that ultimately in relation to the one issue which needed to be resolved judicially she was, in fact, successful. 

12. As to (f) there were a number of items of correspondence which were appended to the mother’s affidavits which contained offers to settle.  Ultimately it appeared to be non-contentious that from shortly after July 2013 the parties were agreed in all respects save in relation to the maternal grandfather’s time with the children.  It is plain that the father could have agreed to those orders (as were ultimately made) at an earlier stage than he did.  As to (g) Ms Sinclair relies upon the fact that the mother has, on occasions, changed the orders that she seeks even considerably, and moreover, that as late as 18 July 2013 her solicitors have indicated that the matter was likely to proceed on more matters than ultimately it did proceed upon. 

13. Moreover, I note that in her submissions Ms Sinclair identifies correctly that the period of time that the mother is seeking costs in relation to was but one part of the litigation, which had a considerable preceding history, in which numerous matters were in contention between the parties.  The mother does not, as I understand it, seek any order in relation to her costs of those earlier parts of the proceedings because she was not legally represented.  Nonetheless the father was legally represented in those proceedings at the time and necessarily the mother’s applications and material would have incurred him costs in the course of their resolution. 

14. Weighing all of those matters in the balance I am not satisfied that there are circumstances that justify the Court making an order as to costs and that the ordinary rule should apply, namely that each party bear their own costs.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 19 August 2014.

Associate: 

Date:  19 August 2014