Bale-Sutch and Bale-Sutch (No 3)

[2010] FamCA 133

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH (NO. 3) [2010] FamCA 133

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Bale-Sutch

RESPONDENT: Ms Bale-Sutch

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: MLC 3800 of 2007

DATE DELIVERED: 24 FEBRUARY 2010

PLACE DELIVERED: Hobart

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM

COUNSEL FOR THE RESPONDENT: MR BARBAYANNIS

SOLICITOR FOR THE RESPONDENT: WISEWOULD MAHONY LAWYERS

Orders

1. That the husband pay the wife’s costs for 15 January 2010 and 18 January 2010 by agreement and failing agreement as assessed by a registrar.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable for the wife to engage counsel to attend and his fees are fixed at $1800 per day for each of two days.

IT IS NOTED that publication of this judgment under the pseudonym Bale-Sutch & Bale-Sutch is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: MLC 3800  of 2007

MR BALE-SUTCH

Applicant

And

MS BALE-SUTCH

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 22 January 2010, I made orders and published reasons relating to the parenting dispute between the parties.  Paragraph 17 of those orders provided for either party to seek costs.

2. On 3 February 2010, the wife filed written submissions seeking costs as agreed or assessed including specific fees for counsel. 

3. It is to be noted that the husband did not file any application for costs himself by 3 February 2010.

4. Paragraph 17 of the orders also provided for any recipient of an application for costs to respond by 17 February 2010.  No response has been received to the wife’s application.

5. The order further provided for the determination of the costs by way of submission and in chambers.  Be that as it may, I will pronounce the orders in open court. 

6. This is a case in which I propose to make an order for costs against the husband.

7. The substantive proceedings related to a dispute about the husband’s time with the two children of the marriage.  Final orders both as to parenting and property were made in February 2009.  They were made after a contested hearing.  No appeal was lodged against those orders.

8. The parenting orders were suspended after an incident at the children’s school in July 2009.  In respect of that incident and as the basis for the suspension, I said at the time in my reasons: 

   4.   In the February orders, my approach was an endeavour to establish the foundation for a sound father and sons’ relationship by a stepped and supervised arrangement.  That approach went wrong because of a dispute about the February 2009 orders.

   5.   In July 2009, the husband took matters into his own hands and an incident occurred at the school of the children in which he forcibly took [S] from the school grounds across the road to a bus stop.  Notwithstanding his protestations that he was legally entitled to do what he did, I find first that he was not.  Secondly, the husband showed no insight into his own aggressive behaviour which set the children against him and that creates an almost impenetrable barrier to ongoing relationships at this time. 

9. The evidence about what the husband did that day was overwhelmingly uncomplimentary of him as a parent.  His evidence indicated his view about his rights rather than about the impact of his behaviour on his children. 

10. The husband’s approach to the litigation meant that not only the circumstances of what occurred in July 2009 but also both the prelude to it and the consequences of it, were in dispute and required findings. 

11. The witnesses of the wife were objective and honest.  The witness of the husband ironically, helped the wife’s case.  The family consultant gave advice to the parties before the case began which made the result inevitable if the facts were found to be true as asserted by the wife.  In short, the husband’s position on the evidence was untenable.

12. In a parenting case, every parent has a right to promote what each sees as being in their children’s best interests.  That is the case even where the evidence may be overwhelmingly against that parent.  It is the obligation of the Court to determine what is best for the future of the children and in most cases, the past is only a guide. 

13. In this particular case, two observations need to be made which are relevant to the costs issue.  The first is that in respect of the historical facts essential for the Court to determine the nature of the relationship of parent and child, the husband disputed everything.  On his view, everyone was wrong except him and I rejected that.  The evidence had to be called and that lengthened the hearing.  Nothing favourable to the husband emerged. 

14. The second observation is that in respect of any proposal for a future resolution, the husband’s only solution was as I described it in the following paragraphs from my reasons for judgment:

    109.I pressed the husband as did the Independent Children’s Lawyer as to how the problem of resurrecting the relationship with the children could be resolved.  He was emphatic in saying that he would not accept supervision.  He was emphatic in saying that the only contact he would contemplate was alternate weekends and half of the school holidays.  When I pressed him as to how I could reintroduce the children having regard to what had occurred, his response was that they could be put into a room and made comfortable and within five minutes they would simply go with him. 

    …

    134.Nothing the husband said offered any avenue to reopen the relationship with the children.  His view was to just to go back to where things had stopped in May.  His behaviour dashed the prospect of that happening.

15. The only observation that could be made was that the husband was unrealistic in respect of his approach.

16. A further relevant consideration in determining the justification for making an order for costs is whether the duration of the proceedings was unnecessarily prolonged by the way in which the parties prepared for and presented their case having regard to:

    (a)my observations about the school personnel, their evidence and their credibility (see paragraphs 66, 79 and 80 of the reasons for judgment);

    (b)my observations about the husband’s witness Ms N (see paragraphs 34, 46 and 47); and

    (c)my observations about the husband’s behaviour in and out of the court room (see paragraphs 10, 16 and 18),

    I am satisfied that the husband unnecessarily and unreasonably prolonged the hearing to the prejudice of the wife. 

17. In respect of the husband’s approach to the litigation, I said:

    I do not find that the husband’s applications were frivolous or vexatious although I clearly indicate that they were misguided. I do not intend to make an order under s 118 of the Act for that reason.

    But in saying what I did, it does not mean that an order for costs is not justified.  Costs are not intended as a punishment but rather as compensation for having to participate in proceedings unnecessarily.  That happened here for the reasons set out above.

18. During the proceedings, two other matters caused an extension of the time unnecessarily.  They were:

    (a)the husband’s unsuccessful application that I disqualify myself including the time taken for the husband to obtain some legal advice; and

    (b)the husband’s unsuccessful attempt to obtain evidence from the wife’s mother about his attempt to obtain injunctions relating to her movement from the country. 

    In the context of the issue really in dispute between the parties, that valuable and expensive time was wasted.

19. Section 117 (1) of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings in this Court, each party should pay their own costs. The exception to that situation arises if the Court is satisfied that there are circumstances justifying an order for costs.

20. I find for the reasons earlier mentioned, the circumstances of this case do warrant a finding that there should be a justification for a departure from the principle that each party pay their own costs.

21. Section 117(2A) is a provision that must be turned to once the justification for a departure from the principle is determined.

22. It was submitted by counsel for the wife and supported by the evidence of the wife:

    (a)the wife has modest income.

    The husband’s position was not set out in the hearing but for a property settlement, the husband still holds all of the major assets.  In any event, neither party is financially sound;

    (b)I was informed that the wife was not provided with funding from any legal aid body and the husband was not represented by a lawyer and did not indicate that he had been given advice from any legal aid funding body;

    (c)Leaving aside my earlier comments about the husband’s behaviour and his approach to the proceedings, his material was hard to follow and often unhelpful.  Much of his evidence and that of his witness, came from oral presentation.  That extended the hearing time; and

    (d)The husband has been wholly unsuccessful because his proposal was that the previous orders should stand.  His previously ordered time has now been removed because of his approach. 

23. Those submissions put on behalf of the wife are matters about which I agree.

24. Had the husband’s approach been a conciliatory one in which he adopted the suggestions of the family consultant whose evidence I heard first in the process to assist in clarifying the issues, the hearing could have been much shorter.  To that extent, the husband could have been justified in at least pursuing the orders he was seeking about the resumption of contact up until the end of the second day of the hearing in October 2009.  Beyond that day, the husband’s position was glaringly untenable.  That justifies an order for costs as I have indicated in respect of the 15 January and 18 January 2010.

25. I do not propose to order that the husband pay the wife’s costs other than those thrown away on 15 and 18 January 2010. I propose to fix the wife’s costs for counsel at $1800 per day for two days plus an instructing solicitor for those two days determined according to the scale in the schedule to the Family Law Rules 2004. Those entitlements will only be permitted if the instructing solicitor so attended.

26. Accordingly I make orders.

I certify that the preceding Twenty Six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin  

Associate: 

Date:  24 February 2010