BACKEN & WOLLAM

[2020] FamCA 338

FAMILY COURT OF AUSTRALIA

BACKEN & WOLLAM [2020] FamCA 338

FAMILY LAW – COSTS

Family Law Act 1975 (Cth) s 117

Hawkins & Roe (2012) 47 Fam LR 526
Prantage & Prantage (2013) FLC 93-544

APPLICANT: Mr Backen

RESPONDENT: Ms Wollam

FILE NUMBER: SYC 1022 of 2020

DATE DELIVERED: 8 May 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

IN CHAMBERS: 8 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney SC

SOLICITOR FOR THE APPLICANT: Kenna Teasdale Lawyers

SOLICITOR FOR THE RESPONDENT: Yates Beaggi Lawyers

Orders

IT IS ORDERED

1. That the father’s application for costs in relation to the applications in a case filed 22 April 2020 be dismissed.

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 Backen & Wollam 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 SYDNEY

FILE NUMBER: SYC 1022 of 2020

Mr Backen

Applicant

And

Ms Wollam

Respondent

REASONS FOR JUDGMENT

1. On 21 April 2020 I delivered reasons and made orders in parenting proceedings between Mr Backen (“the father”) and Ms Wollam (“the mother”). Those orders provided for the six children of the parties to live with the father and for the mother, forthwith, to return the three youngest children to the father.

2. The mother did not comply with those orders.

3. On 22 April 2020, the father filed an application seeking recovery orders and the mother filed an application for a stay of the orders pending appeal.

4. On 24 April 2020 the mother’s application for stay of those orders, pending appeal, was dismissed.

5. The father now seeks costs in relation to the applications filed on 22 April 2020.

6. The father relies on written submissions filed on 30 April 2020.

7. The mother relied on submissions filed 7 May 2020.

8. Section 117 of the Family Law Act 1975 (Cth) governs costs. S 117(1), (2) and (2A) relevantly provide:

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (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.

9. However, as the Full Court has made clear, those principles are considered differently in parenting cases.

10. In Hawkins & Roe (2012) 47 FamLR 526 Their Honours May, Thackray and Ainslie-Wallace JJ stated at 529:

    [13] In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.

    [14] In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.

    Their Honours further stated at 549:

    [146] While in this case the judge expressed adverse findings about the conduct and attitude of the father in his reasons, it is relevant to note that there was no allegation or finding of dishonesty. Nor did his Honour make any adverse findings about the father’s conduct of his case at the trial. Counsel for the mother conceded in oral submissions before us that at no point during the trial did his Honour direct the father to cease repetitive questioning, or to move his questioning more quickly, for example.

    [147] While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

11. In Prantage & Prantage (2013) FLC 93-544 their Honours Thackray and Ryan JJ made the following statements in relation to the award of costs, particularly indemnity costs, in parenting proceedings at 87,210:

    104. We accept that it could be argued that a party’s conduct as a parent and their conduct as a litigant are intertwined. Nevertheless, we have difficulty in accepting his Honour’s statement, at [50], that a failure to foster a parent’s relationship with a child or a refusal to work with a “social scientist” to repair a relationship could themselves lead to an order for indemnity costs. These are matters that seem to us to relate to a party as a parent, not as a litigant.

    105. However, we do accept that the imprudent refusal of an offer to settle on terms that involved a party attending on a “social scientist” to help repair a fractured relationship might provide some basis for a costs order, especially if combined with a party giving evidence, later found to be false, denying their own part in the “fracture”. Furthermore, failure to comply with an order to attend therapy, which then led to further litigation, might be a material matter, as it relates to behaviour as a litigant, as well as behaviour as a parent.

    106. Whilst it seems undoubtedly correct, on his Honour’s findings, that the husband should have behaved differently as a parent, there was no indication in any of the material before us that the husband, for example, rejected an offer of settlement that would have allowed the children to remain living with him on an interim basis whilst family therapy was undertaken. This was the order the trial Judge made in December 2010, and was closer to the position adopted by the husband than it was to the position adopted by the wife, who proposed the children be removed from the husband. See Prantage & Prantage [2011] FamCA 481 at [12] to [14]….

    …

    109. However, this is one case where we consider appellate intervention is justified. Not only did his Honour depart from settled authority, he impermissibly conflated the husband’s conduct as a parent with his conduct as a litigant in determining that costs should be payable on an indemnity basis.

12. In the present instance, the mother was entitled to appeal against the orders made on 21 April 2020 and she did so at the first opportunity. She was further entitled, and indeed obliged, to apply for a stay of those orders and again she did so at the first opportunity.

13. I do not consider the fact that the mother’s application was unsuccessful is sufficient to justify an order that she pay costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 8 May 2020.

Associate:

Date:  08/05/2020