Baisman & Cartmill
[2022] FedCFamC1A 36
•15 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Baisman & Cartmill [2022] FedCFamC1A 36
Appeal from: Baisman & Cartmill [2021] FedCFamC2F 159 Appeal number(s): NAA 41 of 2021 File number(s): NCC 954 of 2021 Judgment of: TREE J Date of judgment: 15 March 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – COSTS – Appeal from an order dismissing an Initiating Application and a costs order – Relevant principles of the rule in Rice and Asplund (1979) FLC 90-725 – Whether the primary judge erred in the application of the rule – Discretionary judgment – Weight challenges – Procedural fairness – Where appellate intervention in relation to costs orders is only mandated if there is either obvious injustice or wrong application of principle – No error established – Appeal dismissed – Appellant to pay costs of respondent in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZQ, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09
Cases cited: Beck and Beck (2004) FLC 93-181; [2004] FamCA 92
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
House v The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5
Stasiuk & Guild [2021] FamCAFC 62
Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Number of paragraphs: 59 Date of hearing: 24 February 2022 Place: Cairns (via video link) Counsel for the Appellant: Mr Tredrea Solicitor for the Appellant: Cifuentes Lawyers Counsel for the Respondent: Mr Willoughby Solicitor for the Respondent: Joplin Lawyers ORDERS
NAA 41 of 2021
NCC 954 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BAISMAN
Appellant
AND: MS CARTMILL
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
15 MARCH 2022
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 18 October 2021 is dismissed.
2.Within 28 days the appellant pay the respondent’s costs in the sum of $10,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baisman & Cartmill has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 20 September 2021, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders dismissing an Initiating Application filed by Mr Baisman (“the father”) which sought to vary earlier final parenting orders in relation to the parties’ two children which had been made by consent on 11 April 2019. His Honour also ordered that the father pay the costs of Ms Cartmill (“the mother”) fixed in the sum of $13,500. By Notice of Appeal filed 18 October 2021, the father challenges both of those orders.
For the reasons which follow, the appeal will be dismissed.
BACKGROUND
The father is presently 42 years of age and a scientist by profession. The mother is presently 39 years of age and an educator by profession. They commenced a relationship in 2000 and finally separated on 4 January 2018. Two children were born to the relationship, X, who is presently 16 years of age, and Y, who is presently 10 years of age (“the children”).
It was not in dispute before the primary judge that the parties’ relationship was marred by family violence, including the father on a number of occasions breaching apprehended violence orders which protected the wife, to the point where he had been given a suspended jail sentence. Likewise it was not in dispute that the father has been diagnosed with borderline personality disorder.
On a date which is unclear on the material, the mother commenced parenting and property proceedings, both of which were concluded by the 11 April 2019 consent orders. Relevant to this appeal, those orders provided that the mother have sole parental responsibility for both children, who would live with her and spend no time with the father. However both children were at liberty to telephone the father for 30 minutes once a week, save that the calls were to be on loud speaker and could be terminated by the mother if inappropriate conversation occurred. There were further orders permitting the father to send letters, emails, gifts and cards to the children, save again that the mother had the right to review any such material prior to it being provided to the children.
By Initiating Application filed 25 March 2021, the father sought to significantly revisit those consent orders, and particularly sought orders that the parties have equal shared parental responsibility for the children, and that the orders effecting a prohibition on him spending time with the children, and imposing restraints on his communication with them, be discharged on both a final and interim basis. Whilst not articulating any final parenting orders other than equal shared parental responsibility, on an interim basis the father sought orders for a Child Inclusive Conference, for the preparation of a Family Report, and for the children to travel from City A to spend (unsupervised) blocks of time with him in City B during their school holidays. He further sought that he be at liberty to provide the children with a mobile phone to facilitate communication between them.
By her Response filed 4 June 2021, the mother sought that the father’s Initiating Application be dismissed, both on a final and interim basis. The basis for her seeking at least the interim dismissal was in reliance upon the so-called “rule in Rice & Asplund.”
On 7 June 2021, a Federal Circuit Court judge made an order listing the matter for hearing “as to whether the Initiating Application filed 25 March 2021 should be dismissed pursuant to the rule in Rice & Asplund”. It was pursuant to that order that the primary judge heard the matter on 20 September 2021, at the conclusion of which he dismissed it for reasons then given orally, and further, made orders in relation to costs, again with reasons given ex tempore.
It is from both of those orders that the father appeals.
THE APPEAL
All of the orders which are challenged by this appeal were made in the exercise of a discretion. At the outset, it is useful to restate the well-known principles applicable to appeals from such judgments. In House v The King (1936) 55 CLR 499 at 504–505, it was said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The so-called rule in Rice and Asplund (1979) FLC 90-725 (“Rice & Asplund”) is based on the notion that it will only be in a child’s best interests to expose them to further litigation if there has been a significant change in circumstances since the previous parenting orders were made. The rule has now been considered by a number of Full Courts, although it may fairly be said that the application and operation of the rule remains somewhat opaque. An analysis of those cases, demonstrates that the following relevant principles may either be drawn directly from them, or otherwise logically arise:
(a)The rule is but one manifestation of the best interests principle;
(b)However best interests are not the only consideration relevant to the application of the rule, with other considerations including public policy issues such as the finality of litigation, and practical matters, such as the stage of the litigation at which the rule is being considered and the nature of issues involved in the several pieces of litigation;
(c)The rule requires there to be a sufficient change of circumstances to justify the re-litigation;
(d)The rule can be applied at any stage of the proceedings;
(e)The effect of the operation of the rule will vary depending upon the time of its application, or more precisely the stage of the litigation when the rule is being applied;
(f)If the rule is considered prior to trial, it may be invoked by way of an application for summary dismissal (in which case the court is likely to proceed on the basis of taking the applicant’s case at its highest and not permitting cross-examination) or alternatively may be dealt with by way of preliminary issue (in which case cross-examination may be permitted and findings of fact made);
(g)If the rule is raised and considered at trial, most of the evils which the rule is intended to overcome or ameliorate will have already ensued. In considering whether it may be appropriate for the application of the rule to be determined as a preliminary point at trial, factors which may influence that decision will include the dislocation of the trial process if there is a reserved judgment, and the additional delay involved. Converse considerations may be the cost to the parties of any trial if indeed the rule’s application at the end of the trial sees re-litigation impermissible;
(h)The rule may also be dealt with at trial by way of something akin to a no case submission, but similar considerations to the determination of the matter as a preliminary issue at trial would again arise;
(i)Logically, the extent of revisitation of prior orders sought by an applicant will be relevant in determining the likely impact of any re-litigation on the child. Arguably, if only a small variation of prior orders is sought, the impact on the child is likely to be less;
(j)Likewise, the court may only permit re-litigation on one or some of the issues sought to be re-agitated by the applicant, if doing so is in the child’s best interests, or conversely, a wider scope of re-litigation is not in the child’s best interests;
(k)Logically, it must be relevant whether or not the prior orders were made by consent, or at the end of a trial, or consequent upon an undefended hearing, and in any case, also relevant will be the circumstances by which the orders came to be made (eg if they were made at an early stage of the proceedings or after lengthy litigation);
(l)The parties will be bound by any findings of fact actually or implicitly made in prior orders, at least to the extent that they were necessarily made to quell the controversy;
(m)It will be a matter for the trial judge as to whether under s 69ZQ of the Family Law Act 1975 (Cth) (“the Act”), evidence should be restricted only to matters post-dating the last orders, or alternatively, if leave to re-litigate is given, it might be conditional upon a limitation of issues or temporal scope of evidence;
(n)Irrespective of the stage the litigation is at when the rule is considered, the determination remains merits based and is not a technical one.
Ground 2 alleges a denial of natural justice. Whilst ordinarily that ground should be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581 and 611), as shall be seen, it is convenient to deal with Grounds 1 and 2 jointly.
Further, insofar as the appeal challenges orders as to costs, it should be noted that whilst appellate courts have generally been reluctant to interfere with a primary judge’s discretion as to costs (Robinson and Higginbotham (1991) FLC 92-209 (“Robinson”)), that does not mean that there should never be interference with the exercise of a costs discretion (Stasiuk & Guild [2021] FamCAFC 62 at [6]). Indeed an appellate court should interfere “if the result is plainly unjust or if the discretion was exercised on wrong principles” (Robinson at 78,417).
Grounds 1 and 2
These grounds provide as follows:
1.The learned Judge erred in law in his application of the principle enunciated in the case of Rice v Asplund in that he failed to identify during the course of the hearing or in his Reasons the procedural and evidential basis upon which he proposed to apply the principle and in particular:
1.1whether he proposed to accept the applicant’s case at its highest for the purposes of the application of the principle or to apply a summary dismissal procedure (whether pursuant to Rule 10 .9 of the Rules of court or otherwise); and
1.2whether and in what way he proposed to resolve any factual disputes for the purposes of the application of the principle.2.Further or in the alternative the learned Judge, in erring in the way described in Ground one hereof, failed to accord the appellant procedural fairness.
(As per the original)
As I have indicated, it is convenient to deal with these grounds jointly, since Ground 2 is predicated upon there being an error as contended for in Ground 1. Ground 1.2 was abandoned during the hearing.
In order to understand these grounds, it is necessary to consider the reasons given by the primary judge for why he dismissed the father’s Initiating Application. Central to his Honour’s concerns about permitting the litigation to continue was the fact that the father had, in breach of the 11 April 2019 consent orders, maintained what were referred to as “back channel” communications with X, of which the mother was wholly unaware. At [34] his Honour said:
34.To say that the messages between the father and X are troubling would be an understatement; they constitute some of the worst emotional abuse of a child that I have read. In a Court in which poor behaviour and emotionally and physically abusive behaviour of parents is commonplace the extent of the father’s emotional abuse towards his son is still striking and well worth noting in these reasons.
These communications had been occurring “from perhaps November 2018 through to December 2020” (at [32]). Significantly, November 2018 pre-dated the consent orders of 11 April 2019.
The following findings were not contentious before the primary judge:
39. … that through the course of 2019 X began having panic attacks, he began mentally struggling, he became oppositional at school. In 2020 the mother had to take him to a GP and he was placed on a mental health plan. He also meddled in drugs and alcohol, as well as on one occasion stealing some medication of a prescription nature which he did not end up in fact taking.
At [40] his Honour concluded that “[i]t is fair to say that X ‘went off the rails’ in 2019 and 2020”.
The primary judge next detailed how the father made monies available to X who thereafter used them, seemingly, to buy illegal drugs.
At [48] the primary judge continued:
48.The father in other messages to X tells him he is old enough to come on his own to City B and that the father has bought him a plane ticket, which sits rather at odds with what he deposed to this Court in his 25 March affidavit wherein he expressed fear that X might vote with his feet and decide to come down to City B. Frankly, his messages make a mockery of his sworn evidence.
Against that background the primary judge turned to consider a report from the father’s treating clinical psychologist. At [67] and [68] the primary judge said:
67.The father has generated a report from his treating clinical psychologist which assures me:
•how far advanced he is in his dialectical behaviour therapy;
•how “honest” he is - and I put “honest” in inverted commas given his behaviour in this case;
•how conscientious and highly engaged he is.
68.I am told that he has improved himself to a significant degree, that he is “more able to resist maladaptive and self-destructive coping behaviours”. Maybe that is so, but he cannot resist his maladaptive behaviours which damage his son. I do not know to what extent his behaviour has been impulsive. I rather doubt that he could rely on impulsivity as a defence to his actions, given the sustained nature of his “back channel” communications with X over a long period.
His Honour then turned to the application of the rule in Rice & Asplund. Significantly, at [76] his Honour said as follows:
76.In SPS & PLS (2008) FLC 93-363, Warnick J sitting as the Full Court expressly observed that the rule in Rice & Asplund is a substantive decision on the merits. It is not merely a procedural matter. It is a merits-based determination that to allow parents to re-open the parenting proceedings overall is not going to be in the best interests of the child or children concerned.
At [79] his Honour continued:
79.If the change is said to be the father’s “road to Damascus” moment through his dialectical behaviour therapy, then I reject it unequivocally. The evidence establishes that he has displayed emotional abuse – behaved in an emotionally abusive, manipulative and, frankly, disgraceful manner in respect of his son. I do not care whether it is borderline personality based or whether the father is simply behaving in a malevolent fashion. It does not matter; what matters is the conduct, not the label that I attach to it. If the father has borderline personality disorder, as he clearly does, then he is certainly more liable or more prone to behave in these self-destructive manners. But it is not just self-destructive; it is destructive of others. That is the primary concern that I have.
(Bold emphasis added)
Later at [83] he said:
83.But even if – even if – the court took the view that the father should be given the benefit of the doubt – and I do not take that view – X is 16. He is struggling. His parents do not get on. There is no trust. The prospect of me ordering this boy onto an aeroplane to City B is zero. It would be, on all of the evidence as best I can discern, a disaster. The father wants to tell him all about the wrong things his mother did, and perhaps he has a sense of guilt because he has not been as involved in his life that he could have been. He has to look in the mirror and put the guilt where it belongs, not on his former lawyers, not on the Police, not on the mother and not even on me or his current lawyers. “Look in the mirror” would be my strong advice to the father. There is your problem right there in front of you.
Given what his Honour had earlier said, perhaps unsurprisingly at [85] and [86] he continued:
85.Frankly, the only relevant change in circumstance - if it be a change - is the escalation in the father’s behaviours, and I have contemplated very seriously putting in place an injunction that the father have no communication with either of these children full stop; or alternatively, ordering that he not communicate with them except expressly as envisaged by the orders made by her Honour Judge Terry.
86.The father poses an unacceptable risk of emotional harm. It is as simple as that. There is nothing more for me to say, really.
(Bold emphasis added)
His Honour summarised his conclusion at [87] as follows:
87.There is no substantial or significant change in circumstance. The harm that was present in April 2019 may be ameliorated perhaps by some of what the father’s clinical psychologist has done. But on the evidence before me, it remains at an unacceptable level, and it is clear to me that the father has engaged in it over a long time and at a time when he was consenting to orders that it looks as though he had no intention of in fact ever abiding by himself.
(Bold emphasis added)
A significant matter is that whilst the father’s initial affidavit in support of his application did not disclose the “back channel” communications with X, once confronted with them in the mother’s material, he implicitly accepted them and certainly did not dispute them (father’s affidavit filed 20 August 2021, paragraphs 23 and 24). In other words, the material that was contrary to the father’s case in the mother’s affidavits was uncontroversial in the hearing before the primary judge.
In his Case Outline filed 16 September 2021 in the proceedings before the primary judge, counsel for the father pointed to two matters which he said comprised the change in circumstance which justified the revisitation of the consent orders. The first was “the evidence of the significant improvement in [the father’s] mental health and his continued commitment to psychological treatment” (at paragraph 6). The second was “his stable relationship with his new wife” (at paragraph 7). That latter point was not emphasised during the oral submissions, although it was further contended that there had been an improvement in the father’s general circumstances since the consent orders, including that some convictions for assault had been set aside, the AVO proceedings had resolved, and the father was now employed.
Perplexingly, given the challenge now made by Ground 1, there was no objection made by counsel for the father before the primary judge to the mother relying upon her affidavit. If it was his contention then that the primary judge was obliged to accept his case at its highest, then his failure to object to the admission of that evidence is difficult to comprehend. If it was his contention that the test to be applied was that derived from summary dismissal under r 10.09(1)(d) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), namely that his Initiating Application enjoyed no reasonable likelihood of success, then given what the Full Court said in Beck and Beck (2004) FLC 93-181 at [20]–[21], the failure to object is impossible to understand.
Whilst it is true that the application of the rule in Rice & Asplund can be invoked at various stages in a proceeding, with or without cross-examination, the fact is that before the primary judge, neither party contended that his Honour was restricted as to what material he could have regard to, nor did either party seek to cross-examine any witnesses. Further, then counsel for the father did not make any submissions in respect of the matters now complained of by Ground 1. Parties are bound by the way in which they conduct their case at first instance (Metwally v University of Wollongong (1985) 60 ALR 68). Appeals are not a means to remedy tactical errors or inadvertence at first instance.
However in any event, in the particular circumstances of this case, the primary judge was not obliged to unquestioningly accept the father’s case that his mental health had improved to an extent that justified re-litigation. That is particularly the case as the unchallenged evidence was that the father’s “back channel” communication with the child, which pre-dated the consent orders, had continued thereafter, and had likely undermined the mother’s parenting.
Any improvement in the father’s mental health was only deserving of significance to the extent it was reflected in his behaviour. Given the undisputed “back channel” communications, the primary judge was well entitled to focus at [79] upon the impact of the father’s behaviour, rather than any improvement in his general mental health (which from the transcript it appears the primary judge likely accepted). That is particularly so given the wholesale upending of the 11 April 2019 orders which the father sought to effect by his new application, even accepting that the 2019 orders were made by consent.
As to the improvement in the father’s general circumstances compared to his situation at the time of the consent orders, the primary judge started with the proposition that the consent orders – given their draconian nature – recognised that the father posed “some form of unacceptable risk of emotional if not other forms of harm to these children” (at [81]). The father contended that his then poor emotional state and circumstances generally, and poor advice, were the cause of his entry into the consent orders. Whilst there was no obligation on the primary judge to accept that – although his Honour explicitly accepted that the father was “probably suffering some diminution in capacity” at the time (Transcript 20 September 2021, p.22 line 47 to p.23 line 1) – even if the primary judge did not do so, the simple fact is that the “back channel” communication clearly demonstrated that the father was nonetheless presently an unacceptable risk of emotional harm to his son (at [79] and [86]) which conclusion is not challenged by any ground of this appeal. It was therefore well open to the primary judge to concluded as he did at [82]:
82.There is no change in circumstance except that he has only put further nails into the coffin of the argument that he has apparently changed.
Ground 1 is without merit.
Ground 2 is dependent upon Ground 1 being established. Ground 1 is not established and Ground 2 therefore fails.
Ground 3
Ground 3 was abandoned during the course of oral submissions.
Ground 4
This ground provides as follows:
4.Further or in the alternative, the learned Judge erred in law in that the proceedings being proceedings to which the provisions of Division 12A of Part V11 of the Family Law Act apply (and thus being “child-related proceedings”) he failed to apply those provisions (including mandatory provisions) during the course of the preliminary application of the principle enunciated in the case of Rice v Asplund that he elected to undertake.
(As per the original)
It is altogether unclear how it is said that the primary judge failed to apply the relevant legal provisions of the Act to the determination of the application before him. To the extent that some elaboration was attempted in the father’s Summary of Argument, it appears at paragraph 27 as follows:
27.Further, ss 60CA and 60CC of the Family Law Act 1975 (Cth) (“the Act”) are unmentioned in the reasons of the learned Judge. The “paramountcy principle” still applies. While the matters which dominated the learned Judge’s reason bear connection to the matter in s 60CC(2)(b) – at least in respect to the child X – the primary consideration in s 60CC(2)(a) and the relevant additional considerations in s 60CC(3) of the Act have been ignored.
(As per the original) (Footnote omitted)
To the extent that this comprises a suggestion that the primary judge did not consider the benefit to the children of having a relationship with the father, it must be rejected. I have already recited a passage in which the primary judge clearly recognised that the question before him was one of where the children’s best interests lay (at [76]). Moreover, bearing in mind that these reasons were delivered ex tempore, permissible recourse to the transcript of the proceedings before the primary judge demonstrates that his Honour was well aware that the decision for his determination was about where children’s best interests lay, and further, that one of the relevant considerations was the benefit to the children of having a meaningful relationship with both parents (see, for example, Transcript 20 September 2021, p.24 lines 29-30).
Ground 4 is without merit and fails.
Ground 5
This ground provides as follows:
5.Further or in the alternative, the learned Judge’s exercise of discretion in relation to the preliminary factual adjudications he elected to undertake whilst applying the said principle miscarried in that he gave inordinate weight to the fact of the “back-channel” communication between the appellant and his son and took into account extraneous and irrelevant matters in assessing the alleged gravity and inappropriateness of that communication as manifested by the excessively strident and hyperbolic and unjudicial language in which he expressed his findings in relation to that issue.
(As per the original)
The descriptor “inordinate” in this ground cannot take away from the fact that this ground is a challenge to the weight given to certain evidence. Likewise the suggestion that the primary judge’s language was “excessively strident and hyperbolic and unjudicial” does not detract from that proposition either.
Time and time again it has been emphasised that appellate challenges to weight face a particularly high bar. That is because the question of weight given to competing evidence is quintessentially a matter for a primary judge (CDJ v VAJ (1998) 197 CLR 172).
The “back channel” communications between the father and X were acknowledged by then counsel for the father to be a clear breach of the 1 April 2019 consent orders which he had entered into. Further, it was well open to the primary judge to conclude that not only were those communications inappropriate, but they were psychologically damaging to X (as his Honour did at [79]). Why they were therefore not deserving of considerable weight – even determinative weight – was unable to be explained by counsel in the hearing of the appeal before me. That is unsurprising given the statutory mandate in s 60CC(2A) that in determining where a child’s best interests lie, the need to protect a child from harm must be given greater weight than the benefit to the child of having a meaningful relationship with both parents.
Ground 5 is without merit and fails.
Grounds 6, 7 and 8
These grounds provide as follows:
6.In making the order for costs under section 117 of the Family Law Act the learned Judge erred in failing to identify the method of his calculation of costs in accordance with the Rules of the Court and thus failed to accord the appellant procedural fairness.
7.Further or in the alternative the learned Judge erred in the exercise of his discretion under section 117(2A) of the Family Law Act by taking into account matters not authorised by section 117(2A) of the Act.
8.Further or in the alternative the learned Judge erred in the exercise of his discretion in making an order for cost other than in a party/party basis.
(As per the original)
I have already noted that appellate intervention in relation to costs orders is only mandated if there is either obvious injustice or wrong application of principle. None of these grounds or the arguments advanced under them engaged with that principle, and that of itself is sufficient to warrant their dismissal.
However dealing with the grounds individually, Ground 6 ignores the fact that there was a detailed memorandum of costs provided by the mother’s counsel at the hearing. No challenge was made to that by then counsel for the father.
Ground 7 is impossible to understand given that s 117(2A)(g) of the Act permits a judge to have regard to any matters which the court thinks relevant to the exercise of the discretion for costs.
Ground 8 is a mere assertion. The primary judge found that there were circumstances justifying an award of costs on an indemnity basis, with some reductions. No direct challenge is made by this appeal to the finding that the circumstances here were “special or unusual” (at [124]).
However even if that be the challenge intended by Ground 8, it must fail. Particularly the primary judge relied upon the fact that the litigation had been brought “in circumstances where [the father] was in flagrant breach of orders” (at [125]) and that the application was “devoid of merit” (at [126] and [128]), and “effectively doomed” from the time that the mother filed her affidavit detailing the “back channel” communications (at [129]). Nonetheless, “the father elected to press on, and to roll the dice and see what a judge did” (at [129].
There is no basis to interfere with the primary judge’s exercise of discretion to award costs other than on a party/party basis.
Grounds 6, 7 and 8 are all without merit and fail.
OUTCOME
No ground of appeal succeeds and hence the appeal must be dismissed.
COSTS
In the event that the appeal failed, the father did not oppose an order for party/party costs against him, however the mother primarily sought an order for indemnity costs which was opposed by the father. There are no circumstances justifying an award for indemnity costs here (Yunghanns v Yunghanns (2000) FLC 93-029); the simple fact is that an unmeritorious appeal was brought and failed.
The mother quantified her party/party costs at $14,254.34. However as I pointed out to counsel during the course of the appeal, plainly some of those items claimed were, at best, solicitor/client, and at worst, unable to be charged to a client at all, for instance “attending to conducting research on case law”.
It has become an almost constant, but necessary, exhortation by this Court, that costs schedules listing party/party costs should not simply include all items of work undertaken, charged at scale. It bears repeating that party/party costs are those costs incurred by a party that were reasonably necessary to achieve justice; they are not simply all work undertaken.
I assess that the quantum of the mother’s party/party costs is more likely in the realm of $10,000 than as claimed. That sum will be required to be paid within 28 days.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 15 March 2022
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