AUSTIN & BENNING
[2018] FamCA 1111
•21 December 2018
FAMILY COURT OF AUSTRALIA
| AUSTIN & BENNING | [2018] FamCA 1111 |
| FAMILY LAW – CHILDREN – where the mother seeks to change the children’s surname to represent a hyphenated surname of the mother and father’s surnames – undefended hearing – where the father has filed no material in response to the mother’s application – order made to change the children’s surname – injunction made restraining the parties from using any other surname of the children. FAMILY LAW – STAY – where the father sought a stay of any order made changing the children’s surname – application dismissed. FAMILY LAW – COSTS – costs order made against the father fixed in the amount of $5,000 |
| Family Law Act 1975 (Cth) ss 4(1), 60CC, 64B 117. Family Law Rules 2004 (Cth) r 19.18. |
| Chapman & Palmer (1978) FLC 90-510 Dunst & Dunst [2014] FamCA 964 In the Marriage of Mahony & McKenzie (1993) FLC 92-408 I and I (1995) FLC 92-625 Lenova & Lenova (Costs) [2011] FamCAFC 141 |
| APPLICANT: | Ms Austin |
| RESPONDENT: | Mr Benning |
| FILE NUMBER: | MLC | 11979 | of | 2017 |
| DATE DELIVERED: | 21 December 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 11 December 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Salamanca |
| SOLICITOR FOR THE APPLICANT: | Gold Stone Family Lawyers |
| THE RESPONDENT: | In Person |
Orders
(1)That the child previously known as X BENNING, born on … 2013, now be known as X AUSTIN-BENNING.
(2)That the child previously known as Y BENNING, born on … 2014, now be known as Y AUSTIN-BENNING.
(3)That the child previously known as Z BENNING, born on … 2017, now be known as Z AUSTIN-BENNING.
(4)That the Applicant Mother apply to the Victorian Registry of Births Deaths and Marriages to register the change of the children’s name, in accordance with Order 1, 2 and 3, and do all such acts and things and sign all such documents as may be required to give effect to that registration.
(5)That each party be restrained from using or being party to or complicit in the use of any surname for any of the said children other than Austin-Benning.
(6)That the Respondent Father pay the Mother’s costs fixed in the sum of $5,000.
(7)That all extant applications in relation to parenting orders be dismissed.
(8)That all extant applications for final property orders be placed in the list of cases awaiting allocation to a Judicial Docket.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Austin & Benning has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 11979 of 2017
| Ms Austin |
Applicant
And
| Mr Benning |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother, Ms Austin brings an application before the Court for a change of the children’s surname from Benning to Austin-Benning. This is a hyphenated surname which includes both her surname and that of the father, Mr Benning.
There are three children of the relationship, X aged five, Y aged four and Z aged almost two.
The father has filed no material in response to the mother’s application, notwithstanding orders requiring him to do so. Accordingly, the application proceeded on an undefended basis, albeit that the father attended the hearing and was given an opportunity to make brief oral submissions.
These are my Reasons for Judgment with respect to the mother’s application.
Background
The mother is aged 38 and is employed as a manager.
The father is aged 37 and is a director.
The parties’ commenced living together in June 2012, married in 2014, and separated in May 2017.
Due to the father’s non-compliance with previous orders and the mother’s reliance on that behaviour in support of her application, it is necessary for me to set out a detailed procedural background.
In November 2017 the mother filed an Initiating Application seeking orders in relation to property only. On 2 February 2018 the father filed a Response to Initiating Application seeking orders in relation to both property and parenting.
On 27 February 2018 the father filed an Application in a Case and the mother in response filed a Response to an Application in a Case on 26 March 2018, seeking orders to change the children’s surname to Austin-Benning.
On 14 March 2018 Cronin J made orders by consent including orders at paragraphs 2 to 6 that the father undertake supervised drug and alcohol urine testing. It is common ground that the father has never complied with those orders in relation to drug and alcohol testing.
On 3 May 2018 Registrar Jenkins made a number of interim property orders by consent. Those orders included orders for the provision of documents by the father to the mother’s solicitors and for the father to arrange for the preparation of taxation returns. The mother deposes that no financial documentation has been provided by the father in compliance with that order.
On 15 May 2018 interim parenting orders were made by consent by Senior Registrar FitzGibbon including an order at paragraph 3(a) that the parties attend upon Mr B for the preparation of a family report and for the father to be responsible for and pay for the costs of and incidental to the preparation of the report. The father did not comply with the order to pay for the preparation of the family report, despite interviews being undertaken by Mr B with the parties and the children.
On 23 August 2018 Registrar Field made orders by consent that the mother’s Response to an Application in a Case filed 26 March 2018 (in relation to the orders she sought for the children’s change of name) be adjourned to the Judicial Duty List on 14 November 2018. Those orders also provided that the father comply with the following orders:
·Order 3(a) of the Orders made on 15 May 2018 in relation to the payment of the family report by Mr B;
·Orders of 14 March 2018 in relation to drug and alcohol screens; and
·Orders of 3 May 2018 in relation to interim property orders.
On 13 September 2018 the mother filed an Amended Initiating Application seeking orders in relation to the children, including orders in relation to changing the children’s surname to Austin-Benning, the same orders sought in her Response to an Application in a Case.
Registrar Field also made orders that in the event that the father failed to comply with those orders the mother be at liberty to apply to proceed with her applications in relation to the change of the children’s name on an undefended basis.
On 14 November 2018 the matter came before me in a Judicial Duty List. I was asked to and did make final orders by consent as follows:-
…
5.That the children of the marriage, namely X born … 2013, Y born … 2014 and Z born … 2017 live with the Wife.
6.That the Husband and the Wife have equal shared parental responsibility for the said children.
7.That the said children spend time with the Husband as agreed between the parties (in writing and via text or email).
8.That the Husband’s consent for the Applications for a travel document to issue with respect of each of the said children be dispensed with and the Wife be at liberty to apply to the Department of Foreign Affairs and Trade (DFAT) to obtain a renewal of, or a fresh travel document for one or other of the said children in her own right and IT IS REQUESTED that DFAT give effect to this Order.
…
The issue with respect to the change of the children’s surname remained unresolved. It was common ground between the parties that the father did not comply with the orders of Registrar Field. As the parties had attended upon Mr B for a family report, I formed the view that I may be assisted in the determination of that issue by Mr B’s report. Therefore, I adjourned the matter to provide a further opportunity for the father to comply with the orders made by consent that he pay the fees to enable the release of that report.
At the time of that order the father submitted he could not afford to pay for the report. The mother alleged and the father agreed that he was residing in a hotel in Melbourne at the cost of approximately $300 per night. The father justified such expenditure on the basis that the costs of his accommodation were met by someone else. Having regard to that submission I was satisfied that whilst the father may not have income from which to meet the report costs, he does have the ability to source funds from third parties as required by him to meet other expenses. In light of that position I made orders that paragraphs 5, 6 and 7 of the mother’s Amended Initiating Application filed 13 September 2018, in relation to the application for the change of the children’s name, be adjourned for a hearing before me. I also made the following orders:
…
2.That by 4.00pm on 21 November 2018 the husband do all acts and things as may be required:-
(a)To comply with order 3(a) of the orders dated 15 May 2018 insofar as they relate to payment of costs of and incidental to the preparation of [Mr B’s] report;
(b)File any affidavit in response in relation to the issues to be determined on the adjourned date with respect to the children’s names.
3.That in the event that the husband fails to comply with order 2 hereof the wife have leave to proceed with her application for change of the children’s names on an undefended basis at the adjourned hearing.
4. That the applicant wife’s costs of this day be reserved.
The father did not comply with order 2 of the orders made by me on 14 November 2018. He filed no material in response to the mother’s application nor did he pay for the Family Report prepared by Mr B.
Prior to the commencement of the hearing the mother’s counsel advised that inquiries were made of Mr B as to whether his Family Report addressed the issue of the change of name. In light of the non-payment of his fees Mr B did not respond to those inquiries.
Documents relied upon and orders sought
The mother relied upon the following documents in support of her application:-
·Amended Initiating Application filed 13 September 2018;
·Affidavit of the mother filed 26 March 2018;
·Affidavit of the mother filed 14 May 2018;
·Affidavit of the mother filed 12 November 2018.
The orders sought by the mother are:
·That each of the said children henceforth be known by the surname Austin-Benning.
·That until further Order each party be restrained from using or being party to or complicit in the use of any surname for any of the said children other than Austin-Benning.
·The Wife be at liberty to approach the Registrar of Births Deaths and Marriages in the State of Victoria to change the surname recorded on each of the said children other than Austin-Benning.
The injunction sought by the mother is expressed as until further order but is under the heading “Final orders sought” in her Amended Initiating Application.
Although the father filed no material in relation to the application I did allow him to make submissions in relation to the issue. During his oral submissions he sought a stay of any order for the change of the children’s name for 14 days to allow him time to consider if he wished to appeal any orders made by me. For the reasons I will set out in more detail below, I indicated that I would not stay the operation of my orders.
The mother’s affidavit filed 26 March 2018 responded to parts of the father’s affidavit filed 6 February 2018. Accordingly I have read those parts of the father’s affidavit. The father did not seek to rely on any other parts of that affidavit.
Legal Principles
Subsection 64B(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that a parenting order is “an order under this Part…dealing with a matter mentioned in subsection (2)”.
Subsection 64B(2) of the Act provides that a parenting order may deal with the allocation of parental responsibility (s 64B(2)(c) of the Act) and any aspect of the care welfare or development of the child or any other aspect of parental responsibility for a child (s 64B(2)(i) of the Act).
Subsection 64B(3) of the Act provides:-
Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
Relevantly, s 4(1) of the Act defines the phrase “major long-term issues” as meaning:-
Issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:-
…
(d) the child’s name;
…
It was submitted on behalf of the mother and I accept that the orders sought by the mother are parenting orders, being orders of a long-term nature in respect of the children’s name.
It was also submitted and I accept, that the orders sought restraining the father from using any other surname is an injunction within the meaning of s 68B of the Act. Section 68B(1) of the Act provides that the Court may grant such injunction as it considers appropriate for the welfare of the child.
The issue of changing a child’s name was considered by the Full Court in Reynolds & Sherman [2015] FamCAFC 128. Whilst the question of whether a change of a child’s name is a parenting order was not argued fully, the Full Court expressed a tentative view that such order does fall within the broad terms of s 64B(2)(i) of the Act and is therefore a parenting order. As such the Full Court held that in determining such matter the Court is obliged to consider the matters set out in s 60CC of the Act. The Full Court also concluded that even if that tentative view was wrong, the child’s best interests were still a “most important consideration” and that a consideration of the relevant matters set out in s 60CC of the Act was desirable.
The issue of changes to children’s names was first considered by the Full Court in the decision of Chapman & Palmer (1978) FLC 90-510 (“Chapman & Palmer”). It held at 77,674:
It is for the Court to balance in its discretion the factors for and against change. The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents.
Further at 77,675-77,676 the Full Court held:
To summarize, the factors to which the courts should have regard in determining whether there should be any change in the surname of a child include the following:—
(a) The welfare of the child is the paramount consideration.
(b) The short and long term effects of any change in the child's surname.
(c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.
Whilst that decision was made prior to the 2006 amendments to the Act, the factors enunciated by the Full Court to which the Court should have regard in my view continue to be relevant in the determination of such application. A similar view was expressed by Austin J in the decision of Dunst & Dunst [2014] FamCA 964. He stated at [129]:
Any decision about the surname by which a child should be known is dictated by the child’s best interests. There is no onus of proof. It is for the court to balance in its discretion the factors for and against the change (see Chapman v Palmer (1978) 4 Fam LR 462). That decision will be informed by such factors as the degree of identification of the child with the existing surname, and any difficulties or embarrassment for the child in using the same or a different surname. The list of factors is not exhaustive (see Flanagan v Handcock (2001) FLC 93-074 at [19]–[38]; M v B [2001] FamCA 894 at [35]–[37]; Marriage of Mahony & McKenzie (1993) 16 Fam LR 803).
Accordingly, in determining the mother’s application, the best interests of the children are the paramount consideration (s 60CA of the Act). In determining what is in the children’s best interests I have regard to sections 60CC(2) and (3) of the Act which set out the primary and additional considerations to be considered in determining those matters.
The mother also relied upon the decision of Warnick J in In the Marriage of Mahony & McKenzie (1993) FLC 92-408. That decision relates to whether a four year old child’s surname which was registered at birth with the father’s surname of Mahony should be changed to a hyphenated surname comprising both parents’ surnames. Warnick J held that the change of the surname to the hyphenated surname was in the child’s best interests.
In relation to the significance of the registration of the child’s surname, Warnick J held that the present form of registration of the child’s name with the father’s surname was of “no particular significance”.[1] Warwick J also held that:
…if each of the parties correctly perceives [the child] to identify with each of the surnames, the use of the hyphenated surname allows him a chance to retain a connection with the name of each parent.
…the use of the hyphenated surname, in a number of ways, accords with the reality of [the child’s] life. His mother is Ms McKenzie, his father Mr Mahony. [The child] is the product of their union. He would have a united surname. He has an on-going relationship with both of his parents, though they do not live together. The use of the hyphenated surname might facilitate the recognition by others of [the child’s] life circumstances and the ease with which [the child] accepts his life circumstances.
Finally, the use of the hyphenated surname offers [the child] a middle road in times of rapidly changing social attitudes. I would not purport to assess degrees by which segments of society hold pertinent attitudes, but I can, I believe, recognise attitudes commonly found in society at this time. Some persons would support the proposition that in theory, if not in the application to a particular child, there should no longer be a preference for the paternal surname. Some people would support the right in [the mother] to revert to the use of her own family name upon the breakdown of her relationship with [the father]. Some people would support the right in [the mother] to apply her surname for [the child], where she is custodian. Some would support the use of the combined surnames.
As [the child] grows he will become aware of attitudes in the community. He may develop feelings and ideas of his own about his surname and the use of the hyphenated surname would seem to provide him with a non-contentious platform from which he may choose to move in one direction or another, or to maintain the compromise.[2]
[1]In the Marriage of Mahony & McKenzie (1993) FLC 92-408, 80,185.
[2]In the Marriage of Mahony & McKenzie (1993) FLC 92-408, 80186.
Whilst that decision also predates the 2006 changes to the Act, it was submitted on behalf of the mother that the matters taken into account by Warnick J were also relevant to the consideration of the issues in this case.
Evidence
The mother in her affidavits sets out the bases for her proposed change of the children’s surname. She deposes that:
The surname ‘[Austin]’ has an extensive and significant history. As our surname is uncommon, its history and usage is something that is often raised and discussed within my family and with my friends. I am frequently asked about its origin. I want the boys to share that heritage and background. I believe it will be in their interests to be able to identify with me and their extended family in a tangible and practical way.[3]
[3] Affidavit of the mother filed 26 March 2018, par 43.
Further, the mother deposes that her sisters do not have children. As such, it is likely that her children may be the only children of their generation in her family to carry on the surname of Austin.
The mother deposes that given the children’s young age she does not believe the children currently identify with their registered surname of Benning. Accordingly, it is her view that a change of surname at this time will not cause them any confusion or adverse effect. The parties’ eldest child X is to commence school in 2019. It is likely that X will become more aware of his surname upon his commencement at school and it is also probable that his peers at school will come to know him by that name. Accordingly, it was submitted that if there is to be a change to the children’s name it should occur prior to X’s commencement at school in 2019.
The mother also deposes that she believes that the change in name will assist and promote the children’s identification with her as their mother, while retaining the same identification with the father and his family.
The mother’s evidence is that the father has had “sporadic involvement” in the children’s lives and that in her view he has not presented as a “commendable role model” for them. The mother deposes that she has been pro-active in most areas of the children’s long-term care, welfare and development.[4] It is noted that the final parenting orders made by consent do provide for the parents to have equal shared parental responsibility for the children.
[4] Affidavit of the mother filed 12 November 2018, par 8.
The mother alleges that the father has committed family violence towards her on a number of occasions and this is set out in detail in her affidavit material. On 3 November 2017 an Intervention Order was made against the father with the mother and children named as affected family members. The Intervention Order expires on 3 November 2019. The mother deposes that the father consented to that order without admission.
The mother also alleges that the father uses illicit drugs and abuses alcohol. She deposed that the father has failed to provide any drug and alcohol testing results despite orders and a number of requests requiring him to do so. The mother deposes that she remains concerned that the father is a “habitual and frequent user of illicit drugs” and she is concerned he misuses alcohol.[5]
[5] Affidavit of the mother filed 12 November 2018, par 13.
The mother in her affidavit filed 26 March 2018 sets out in detail her allegations against the father in relation to previous illicit substance use and his behaviour. The mother deposed that the effect of the father’s drinking and drug use “was such that he paid little attention to the children…”[6] She also deposed that the father’s relationship with the children was “superficial”.[7]
[6] Affidavit of the mother filed 26 March 2018, par 12.
[7] Affidavit of the mother filed 26 March 2018, par 13.
The mother also deposes that the father has an extensive criminal record and “has been found guilty of a variety of offences, including drug trafficking, drink driving, careless driving and stalking”.[8] The mother deposed that in 2010 the father was imprisoned for a minimum period of 20 months for dishonesty offences. The mother also relied on a number of psychological reports in relation to the father and set out passages of those reports at paragraph 18 of her affidavit filed 26 March 2018.
[8] Affidavit of the mother filed 26 March 2018, par 17.
The mother’s evidence is unchallenged. Notwithstanding orders of the Court that the father file responding material he has not done so. During his oral submissions the father did not challenge the mother’s allegations with respect to his criminal history, his drug abuse or his failure to submit to drug testing. The father submitted that the expert psychological assessments relied upon by the mother were outdated. There is force in that submission given the most recent report referred to was prepared in 2009.
It was submitted on behalf of the mother’s counsel that the father has been spending limited supervised time with the children since the making of the final parenting orders. The father disputes this. He submits that he spends unsupervised time with the children. There was no evidence from either party in relation to those matters.
Conclusion
For the reasons that follow I am satisfied that a change of the children’s surname as sought by the mother is in the children’s best interests.
Section 60CC(2)(a) of the Act requires that I consider the benefit to the children of having a meaningful relationship with both parents. The mother submits and I accept that the incorporation of her surname as part of the children’s surname will likely strengthen and reinforce their connection with her. She submits and I accept that the proposed hyphenated surname is a public confirmation of the children’s connection to both parents.
The mother alleges that the children have been at risk of harm in the father’s care (s 60CC(2)(b) of the Act) due to the father’s anti-social behaviour, including his history of using illicit substances and his alleged violence and criminal history. The mother’s evidence with respect to these matters is unchallenged. Further, the mother points to the father’s non-compliance with court orders in relation to these matters as support for her contention that the father’s interest in and commitment to the children is superficial. Given the manner in which the father engaged in these proceedings, there is force in that submission.
I am satisfied that the children have a strong and close relationship with the mother, who is their unchallenged primary carer. I am satisfied that the change in surname will promote the children’s identification with their mother and her family. There is no evidence before me that such change will in any way alter or diminish the relationship the children enjoy with the father. The father adduced no evidence and made no submissions in relation to this matter. The hyphenation of the two surnames will ensure that the father’s surname will continue to be used by the children and ensure the children continue to identify with him.
It was submitted by the mother that given their young ages, there has not been entrenched usage of the children’s surnames that may cause them embarrassment or discomfort if they were to be changed. I agree with that submission. I do not consider there would be any negative impact upon the children if their surname was changed to Austin-Benning (s 60CC(3)(d) of the Act). The change in the children’s surname is unlikely to cause the children confusion. I consider at this stage of their development, it is unlikely that the children have any significant degree of identification with their existing surname and there is no evidence that they will suffer any embarrassment by the proposed change.
It was submitted by the mother that there are short term and long term advantages of the name change, including that the mother, the parent with whom the children live, would be happier if the children can identify with her surname and her name can be preserved. It was submitted there could be a sense of disappointment for the mother if the proposed change did not occur. I accept that submission.
In the hearing before me in November the father submitted that a hyphenated surname is more cumbersome than the children’s registered surname of Benning and as such the mother’s application should be refused. In support of that submission the father noted that he was given a hyphenated surname at birth but had since ceased using that surname. Hyphenated surnames are commonly used in Australia. Whilst the father’s preference was not to use his given hyphenated name I do not accept his submission that the use of such a name is awkward. There is no evidence before me that would support his submission that a hyphenated surname is any more burdensome than a single surname.
Having regard to the mother’s unchallenged evidence, I am satisfied that it is in the children’s best interests that their surname be changed from Benning to Austin-Benning. I am satisfied that such change will reinforce to the children their connection with the mother and promote their relationship with both of their parents. Given the mother’s evidence regarding the father’s history of anti-social behaviour I am satisfied that it is in the children’s best interest that their connection to the mother be confirmed in this way.
The mother also sought an injunction restraining the parties from being a party to or complicit in the use of the surname for any of the children other than Austin-Benning. As previously noted the mother relied on s 68B of the Act in relation to the injunction. I am satisfied that an injunction in the terms sought by the mother is appropriate to protect the children from any confusion that may arise if the parties use a surname other than that ordered.
Stay
The father sought that any order for the change of the children’s name be stayed for a period of 14 days to allow him time to consider whether he would appeal the order. The mother opposed the stay.
Rule 22.11 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that:
…
(2) If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3) An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge of the Family Court, Judge of the Federal Circuit Court or Magistrate who made the order under appeal.
An appeal has not been started by the father, as at the time of the hearing, the order had not yet been made. Therefore I do not consider it appropriate to stay the order in circumstances where the mother is entitled to the fruits of the litigation and where it is submitted that the mother wishes to enrol the child in school in 2019 using the new surname.
Whilst I have inherent jurisdiction to order a stay of the orders, I do not think it is appropriate to order a stay in circumstances where the father filed no material to oppose the order and the mother’s application proceeded undefended.
Costs
The mother also seeks an order that the father pay her costs fixed in the sum of $5,000. The mother sought the costs of the hearing before me as well as costs for the preparation for the hearing.
I invited the father to have the matter stood down to enable him the opportunity to consider s 117 of the Act. The father declined the invitation.
The question of costs is governed by s 117(1) of the Act which provides:-
Subject to sub-section (2), subsection 70NF(b)(1) and sections 117AA, 117AC and 118, each party to proceedings under this act shall bear his or her own costs.
That is, the general rule in proceedings under the Act is that subject to the provisions of s 117(2) of the Act, the parties to the proceedings shall bear their own costs of the proceedings.
Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to sub-sections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs as the Court considers just.
Section 117(2A) of the Act provides that in determining what order (if any) should be made under sub-section (2) the Court must have regard to the following:-
(a)the financial circumstances of each of the parties to the proceedings;
(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 that assistance to that party;
(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;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(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; and
(g)such other matters as the court considers relevant.
Costs are not awarded as punishment of the unsuccessful party but rather are compensatory in the sense that they are awarded to ameliorate the expense of the successful party as a result of having been required to participate in the legal proceedings.
The discretion in s 117 of the Act is broad and the relevant factors in s 117(2A) are not to be read in a restrictive way; any one of those factors may found an order for costs but all factors must be taken into account and balanced (I and I (1995) FLC 92-625).
Section 117(2A)(a) The financial circumstances of each of the parties
The mother deposed in her affidavit filed 26 March 2018 that she is unsure of the father’s income and despite requests for the father to provide financial documentation the father has refused. The father’s Financial Statement filed on 6 February 2018 does little to inform the Court as to his circumstances. The document lists all items as “unknown” save for a liability of approximately $290,000. At the time of filing that Financial Statement the father was represented by lawyers.
Counsel for the mother submitted that whilst the current financial circumstances of the father are unclear, the father did consent to the order on 15 May 2018 requiring him to pay for the preparation of a private family report by Mr B.
Counsel for the mother also relied on the submissions made by the father at the hearing on 14 November 2018, in which he conceded that he currently lives in a hotel at the cost of approximately $300 per night. I note the father claims those expenses are paid by someone else.
The father submitted that he opposed the application for costs noting that “the ability to pay doesn’t exist so it is largely irrelevant…”
Impecuniosity is, of itself, no bar to a costs order as otherwise, an impecunious litigant would be free to pursue meritless applications at will (Lenova & Lenova (Costs) [2011] FamCAFC 141).
Section 117(2A)(b) Whether either party is in receipt of legal aid
Neither party is in receipt of legal aid.
Section 117(2A)(c) The conduct of the parties in relation to the proceedings
The mother principally relied on the conduct of the father and pointed to the father’s failure to comply with orders, which has been set out previously.
The mother first sought to change the children’s surname in March 2018. The proceedings have been adjourned on a number of occasions since that time due to the father’s opposition to the application and his failure to comply with orders to file documents.
On 23 August 2018 the mother’s application for the change of the children’s surname was adjourned to the Judicial Duty List on 14 November 2018 and provided that in the event the father failed to comply with certain previous orders the mother have liberty to proceed with her application on an undefended basis.
When the matter came before me on 14 November 2018 I gave the father a further opportunity to comply with orders and to file material responding to the mother’s application. The father conceded he did not comply with those orders and did not file any material.
The mother’s counsel also submitted that the father has not provided any explanation of why he opposed the mother’s application. The father has been aware of the mother’s application since March 2018. Notwithstanding his apparent opposition to the application and orders requiring him to file affidavits in support of that position, the father ultimately filed no material in response to her application. In reality, although he attended the hearing, the father did not participate in the hearing in any meaningful way.
Section 117(2A)(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
As previously discussed, the hearing before me was necessitated by the father’s failure to comply with previous orders that he file responding material.
Section 117(2A)(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
It was submitted and I accept that the father was wholly unsuccessful in the proceedings.
Section 117(2A)(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 factor is not relevant to the current application.
Section 117(2A)(g) Such other matters as the Court considers relevant
There are no other relevant matters.
Conclusion – Costs Application
Having regard to the above matters, I am satisfied that there are circumstances that justify an order for costs in favour of the mother against the father. The mother was wholly successful in her application. Further, the father’s conduct in failing to file documents in accordance with court orders unnecessarily prolonged the finalisation of the mother’s application.
The Rules provide that the court may make an order for costs on a number of different bases as set out in r 19.18(1) of the Rules:
(1) The court may order that a party is entitled to costs:
(a) of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity)
(c)to be calculated in accordance with the method state in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
Rule 19.18(3) of the Rules sets out the method of calculation of costs, providing that:-
(3) In making an order under subrule (1), the court may consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party’s behaviour in the case;
(c) the rates ordinarily payable to lawyers in comparable cases;
(d) whether a lawyer’s conduct has been improper or unreasonable
(e) the time properly spent on the case, or in complying with pre-action procedures; and
(f) expenses properly paid or payable.
Having regard to the Rules I am satisfied that the amount sought by the mother is appropriate. It was necessary for her to file an amended application, affidavits in support and to brief counsel to appear on both 14 November and 11 December 2018. Schedule 3 of the Rules allows between $838 and $1,939 for Counsel to appear. I am satisfied that an allowance of $3,800 is appropriate in respect of Counsel’s fees for the two days of hearing. Further, I will allow the sum of $1,200 for the drafting of the Court documents and preparation of brief to Counsel. Accordingly, I will order the father pay the mother’s costs fixed in the sum of $5,000.
Orders
Final parenting orders have been made and therefore I will dismiss all extant applications in relation to parenting. The property proceedings are continuing and therefore I will place the property proceedings in the list of cases awaiting allocation to a judicial docket. Therefore the orders I make are as follows:
(1)That the child previously known as X BENNING, born on … 2013, now be known as X AUSTIN-BENNING.
(2)That the child previously known as Y BENNING, born on … 2014, now be known as Y AUSTIN-BENNING.
(3)That the child previously known as Z BENNING, born on … 2017, now be known as Z AUSTIN-BENNING.
(4)That the Applicant Mother apply to the Victorian Registry of Births Deaths and Marriages to register the change of the children’s name, in accordance with Order 1, 2 and 3, and do all such acts and things and sign all such documents as may be required to give effect to that registration.
(5)That each party be restrained from using or being party to or complicit in the use of any surname for any of the said children other than Austin-Benning.
(6)That the Respondent Father pay the mother’s costs fixed in the sum of $5,000.
(7)That all extant applications in relation to parentings orders be dismissed.
(8)That all extant applications for final property orders be placed in the list of cases awaiting allocation to a Judicial Docket.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 21 December 2018
Associate:
Date: 21 December 2018
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