Baboor and Reema and Ors
[2020] FamCA 227
•9 April 2020
FAMILY COURT OF AUSTRALIA
| BABOOR & REEMA AND ORS | [2020] FamCA 227 |
| FAMILY LAW – COSTS – Where the mother seeks an order that the father pay her costs in relation to her interim parenting application – Where the father seeks that the mother’s costs application be dismissed – Where the father’s conduct added to the time and cost of proceedings – Where the mother was wholly successful in her interim application – Where circumstances do justify an order for costs – Costs order made in favour of the mother. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 19.08 |
| Baboor & Reema [2019] FamCA 698 D & D (Costs) (No. 2) (2010) FLC 93-435 PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 Penfold v Penfold (1980) 144 CLR 311 |
| APPLICANT: | Ms Baboor |
| 1st RESPONDENT: | Mr Reema |
| 2nd RESPONDENT: | Mr Reema Snr |
| 3rd RESPONDENT: | Ms Reema Snr |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 1995 | of | 2018 |
| DATE DELIVERED: | 9 April 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | In Chambers |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | Walter & Elliott Family Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE 1ST RESPONDENT: | Broun Abrahams Burreket |
| COUNSEL FOR THE 2ND RESPONDENT: |
| SOLICITOR FOR THE 2ND RESPONDENT: | Watts Mccray |
| COUNSEL FOR THE 3RD RESPONDENT: |
| SOLICITOR FOR THE 3RD RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the father pay the costs of and incidental to the mother’s Application in a Case filed 12 April 2019 in the sum of $9,000.
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 Baboor & Reema 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 PARRAMATTA |
FILE NUMBER: PAC 1995 of 2018
| Ms Baboor |
Applicant
And
| Mr Reema |
Respondent
And
| Mr Reema Snr and Ms Reema Snr |
Second Respondents
REASONS FOR JUDGMENT
Introduction
This judgment concerns an application for costs made by the mother who is the respondent in proceedings initiated by the father. The parties are engaged in a property settlement and parenting dispute relating to the only child of their seven year marriage.
The mother seeks an order that the father pay her costs in relation to an Application in a Case filed on 12 April 2019 in which she sought that the child be permitted to travel overseas with the her for a short period of time.
On 30 September 2019 orders were made as sought by the mother in her Application in a Case and the parties agreed that the mother’s application for costs could be dealt with in chambers after submissions had been filed. Orders were also made for the parties to file written submissions and any affidavit evidence in support of this application.
Shortly after the parties filed their submissions as to the mother’s costs application, the father filed an Application in a Case seeking that I recuse myself from further hearing the proceedings. At a case management hearing before me on 9 December 2019 the father urged the Court to determine his recusal application prior to any other application including in relation to the mother’s costs. The mother opposed the adjournment of her costs application. As directions in relation to the mother’s costs had already been complied with prior to the filing of the recusal application and judgement as to costs had already been reserved, I dismissed the father’s application to determine his recusal application prior to delivering judgment as to the mother’s costs.
The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs.
Background
The parties have been involved in highly acrimonious property and parenting proceedings involving their four year old daughter (“the child”) since May 2018.
The mother has held sole parental responsibility for the child who lives with her and spends no time with the father and paternal grandparents since interim orders in these terms were made in November 2018 following an interim defended hearing. The Independent Children’s Lawyer (“ICL”) supported the mother’s application for these orders as being in the best interests of the child.
On 30 September 2019 I delivered judgment[1] (“the judgment”) determining an interim application initiated by the mother in April 2019. In summary, the mother sought an order that the child’s name be removed from the Family Law Watchlist and that the child be permitted to travel with her to the mother’s home country for five weeks to visit elderly members of the maternal family and to attend two family weddings.
[1]Baboor & Reema [2019] FamCA 698.
The father opposed the mother’s application and in an affidavit filed 22 May 2019 he asserted that there was a real risk that the child would not be returned to Australia. The general tenor of his evidence was that the mother had more incentive to live in her home country with the child than to return to Australia given she did not have any family or substantial financial resources in Australia. In response, the mother filed an affidavit in which she deposed to various matters indicating her ties to Australia including that she had applied for Australian citizenship and had no intention to relocate to her home country with the child.
On 30 September 2019, I made orders largely in terms sought by the mother. As can be seen from the following extracts from the judgment, I attached considerable weight to the following matters in finding that the risk of non-return by the mother was not of such a magnitude that the orders sought by her ought to be refused:
[34] Although the mother’s ties with Australia do not include the ownership of any real estate or business interests and the mother has no family members residing here in my view particular weight must be attached to the fact that the child is an Australia citizen who is unable to travel to the mother’s home country other than as a tourist by virtue of her Australia citizenship.
…
[40] …[T]he mother’s conduct at all times since separation is consistent with her intention that she wishes to return to Australia.
…
[44] The mother has agreed to deposit $15,000 as security in the event that she does not return the child to Australia.
…
[48]…[A]lthough there is some risk that the mother will not return to Australia and will remain in her home country this is not a significant risk. The security that the mother is able to offer which is not insignificant in her circumstances, also supports her promise that she will return the child to Australia.
…
[55] Family violence looms large in these proceedings. As previously noted the mother makes serious allegations of physical violence perpetrated by the father against her to which the child was exposed and contends that he behaved in a controlling manner towards her throughout the marriage. In these circumstances I attach some weight to the contention that the father may be seen as attempting to exert control over the mother in refusing to consent to her taking the child to her home country especially if he may not hold genuine concerns about the child’s non return.
[56] In my view, there is some support for the contention that the father does not hold such genuine concerns and opposes the travel for other reasons. For example, he deposes to opposing the travel in part on the basis that the child has missed some opportunities to participate in paternal family weddings due to the mother’s actions in taking the child from him and refusing all contact when the parties first separated. In this regard, it may be seen that the father is denying the child having similar opportunities with her maternal family in response to the mother’s actions rather than due to genuine concern that she will retain the child overseas.
…
[58]…[W]hile there is some risk that the mother will not return the child to Australia, that risk is not significant having regard to the mother’s actions from the time she separated from the father up until the present. She did not opportunistically flee from Australia when she first separated even though she then had a valid visa for the child, and has a strong incentive to return to Australia given that her child is a citizen in this country. There are other incentives for the mother to return to Australia including employment, superannuation and the prospects of Australian citizenship.
In the course of the hearing the parties consented to the mother’s application for costs being considered in chambers on written submissions and evidence filed.
The mother seeks that her costs be paid by the father in the sum of $9,000 as assessed in accordance with the scale set out in Schedule 3 to the Family Law Rules 2004 (“the Rules”). She relies on the judgment, her affidavit dated 11 November 2019, her Financial Statement filed 14 October 2019 and the Financial Statement filed by the father on 6 November 2019. She also relies on her written submissions filed in accordance with directions.
The husband seeks that the mother’s costs application be dismissed and relies on his written submissions, the parties’ Financial Statements and the judgment.
The law
Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to subsection (2) which gives a Court a discretion to make an order for costs if there are circumstances that in the Court’s opinion justify it doing so. Any such order for costs is to be pursuant to section 117(2) “as the Court considers just”.
The High Court in Penfold v Penfold[2] held that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
[2] (1980) 144 CLR 311
Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.The relevant matters are considered as follows.
The financial position of each of the parties to the proceedings
The mother asserts that her financial circumstances are strained. In her Financial Statement she deposes that her total average weekly income is $2,038 comprising of her $1,686 salary, $109 in government benefits and $243 in child support from the father. In her written submissions the mother indicates that her income is mainly used to support herself and the child for whom she has sole care. She further submits that in the absence of any family to support her in the care of the child her income earning capacity is limited as she is required to manage parenting responsibilities entirely on her own.
The mother deposes that her total personal expenditure each week is $2,094, which consists of rent, income tax, life and private health insurance and payments for white goods. She also claims that the expenses paid by her for the benefit of the child total $400, comprising daily living expenses, child care fees and extracurricular activities.
It is apparent from the mother’s Financial Statement that she is the sole owner of a property situated in her home country that has an estimated value of $30,288. She also owns jewellery worth $15,540 and household contents $700 in value. The mother indicates that she has a superannuation entitlement of $46,320. Otherwise, the mother has a debt of $110,814 which largely consists of a personal loan and unpaid legal fees.
The father submits that he is not of significant means and is seriously burdened by debt. He asserts that in circumstances where the mother seeks a final property order for 70% of the parties’ assets in the substantive proceedings, he would be in a “significantly worse position to that of the mother”.
In his Financial Statement the father indicates that he is employed as a management consultant and earns $2,040 per week including $555 in rental income. He indicates that his weekly expenditure is $3,859. The father deposes that he owns a property with a value of $680,000 encumbered by a mortgage of $354,000. Other assets he owns include a motor vehicle, some household contents and other personal property with an estimated total value of $3,693. The father also indicates that he has a superannuation entitlement of $235,440 and that his total liabilities comprising of mortgage repayments, personal loans, credit card debt and unpaid legal fees are estimated at $599,883.
Despite the father’s very high level of claimed liabilities I am satisfied that he is in a superior financial position to the mother and has some capacity to satisfy any order for costs. Not only is he employed but also receives rental income and has had the capacity to retain private legal representation throughout the proceedings. Even if the father did not have the capacity to pay, impecuniosity is no bar to the making of an order for costs.[3]
[3]D & D (Costs) (No. 2) (2010) FLC 93-435.
The father contends that the mother’s financial position is not a weighty consideration and in this regard relies upon my finding in the judgment that the mother’s limited financial circumstances was “not a weighty factor [in determining her application of travel] having regard to the mother’s likely entitlement to at least some of the net matrimonial asset pool and the prospect if she were successful of receiving a significant sum”. Even if I accept little weight should be attached to this matter there is nothing to prevent any one factor being the sole determinant for an order for costs.[4] There are, in my view, other matters discussed below that justify the making of an order for costs.
[4] PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123.
The conduct of the parties to the proceedings in relation to the proceedings
The mother asserts that the father’s conduct in relation to the proceedings was “improperly inflexible and obstructive” so as to cause her to pursue her Application in a Case and therefore incur unnecessary legal fees.
Prior to the mother filing her Application in a Case on 12 April 2019, her solicitors sent the father’s then legal representative a letter dated 9 April 2019. In this letter the mother requested the father’s permission for the child to travel outside Australia with her and indicated her reasons for travel and the intended duration of the trip. The father did not respond to this letter for six days by which time the mother had filed her application.
In a letter dated 15 April 2019 from the father’s then solicitor the father indicated that he did not consent to the child travelling overseas with the mother and would be seeking supervised time with the child on an interim basis. Further in that letter the father warned the mother that if she did not withdraw her application he would be seeking costs against her on an indemnity basis.
The mother claims that the father did not hold genuine concerns about her not returning to Australia with the child when he opposed her application to travel with the child. She asserts that the father’s non-consent was an attempt to be “vindictive” and an attempt to exert control over her. It is her case that the father appeared to be denying the maternal family the opportunity to spend time with the child in response to the limited time the child has spent with the paternal family (including himself pursuant to the interim orders) since the parties’ separation.
On 10 May 2019 the ICL sent a letter to both parties discussing the option of the mother entering into a bond or providing an undertaking as conditions of any permission to travel. In her letter dated 15 May 2019, the mother indicated that she was prepared to enter into a bond but that she had “extremely limited resources from which any bond could be procured”. No response to the ICL’s letter was received from the father.
On 14 August 2019 the mother’s solicitor again sent a letter to the father’s legal representatives. In this letter the mother proposed to provide an undertaking to the Court that she would return the child to Australia following their trip to her home country. She also proposed to deposit $15,000 by way of security, such monies to be returned to her following her return from overseas with the child. The father again did not respond to this letter.
The mother submits that it should have been clear to the father that a $15,000 bond was not insignificant to her and was indicative of her commitment to return to Australia.
In his written submissions the father asserts that his case against the mother’s application was based on bona fide concerns including that the parties are involved in a highly acrimonious dispute in which the mother contends that she is fearful of the father for herself and the child due to the father’s history of family violence, and that in absence of any family or substantial financial resources in Australia the mother may remain indefinitely in her home country. He further added that these concerns were genuine as they were held even at the time he initiated proceedings given that even then he had sought an order that the mother be restrained from removing the child out of Australia and that the child’s name be put on the Family Law Watchlist.
In further support of his case that he held genuine concerns that the mother would not return to Australia with the child such that a costs order against him would not be appropriate, the father submitted that the mother’s home country is not a signatory to the Hague Convention. It was therefore his concern that he would face significant difficulties and costs in recovering the child in the event the mother did not return to Australia.
As discussed in the judgment, I was not satisfied that the mother’s bond in the order of $15,000 provided insufficient incentive for the mother not to return with the child to Australia. This is especially so in this case where there was no evidence to suggest that the child had any entitlement as an Australian citizen to remain living in that foreign country. In these circumstances I am of the view that the father continued to unreasonably press a case with little merit.
I also attach particular weight to the father’s lack of response and engagement in discussions relating to the mother’s proposal for travel that may have otherwise expedited negotiations on the mother’s application or even resolved the matter and thereby prevented it from proceeding to a contested hearing.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
Some weight may be attached to the fact that the mother was substantially successful in her application for permission to travel overseas with the child as the orders made were largely in the terms sought by her.
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
As identified above, on 14 August 2019 (just over a month before the hearing) the mother sent a letter to the father’s then solicitors indicating that she was prepared to file an undertaking with the Court to return the child to Australia following their trip and was willing to deposit $15,000 by way of security. She also communicated in this letter that should the father agree to her proposal, consent orders would be prepared, and if not, such letter would be relied upon in relation to costs in the event her application was successful.
Although the father was put on such notice, he did not respond in any way to that letter. The proposed order in relation to the $15,000 was subsequently made in the terms sought.
Conclusion
Having regard to the relevant factors discussed above, I am satisfied that there is sufficient justification to depart from the usual rule that each party bear his or her own costs.
Rule 19.18(1) of the Rules states that the court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
In her affidavit filed 11 November 2019 and in her written submissions the mother deposes to incurring a total of $17,970 in legal fees. She however seeks that only part of that amount be paid by the father as assessed in accordance with the scale set out in Schedule 3 to the Rules. Although the bill of costs annexed to the mother’s written submissions indicates that the costs incurred at scale rate totals $9,384.86, the mother only seeks that the father pay the sum of $9,000 to “attempt to reduce further dispute between the parties”.
Attaching weight to the father’s conduct in relation to the mother’s application (particularly where an offer was made by the mother to settle the matter to which the father did not respond) and as he was wholly unsuccessful in that application and appears to be in a superior financial position, I am satisfied that it is appropriate to make a costs order in favour of the mother.
The order I make is set out at the forefront of these Reasons for Judgment.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 April 2020.
Associate:
Date: 9 April 2020
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