Barlow and Jarman (No. 2)

[2017] FamCA 823

FAMILY COURT OF AUSTRALIA

BARLOW & JARMAN (NO. 2) [2017] FamCA 823

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Barlow

RESPONDENT: Mr Jarman

FILE NUMBER: AYC 66 of 2009

DATE DELIVERED: 16 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of Written Submissions

SUBMISSIONS RECEIVED FROM

THE RESPONDENT: In Person

THE APPLICANT: In Person

Orders

1. The application for costs by way of affidavit marked as filed on 5 October 2017 is 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 Barlow & Jarman (No. 2) 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: AYC 66  of 2009

Ms Barlow

Applicant

And

Mr Jarman

Respondent

REASONS FOR COSTS JUDGMENT

1. On 6 September 2017 the court made orders finalising parenting and financial proceedings between Ms Barlow and Mr Jarman.  Paragraph 12 of that order read:

   Should any party (or the Independent Children’s Lawyer) desire to seek a costs order arising from these proceedings, they may make such application by written submission filed and served by no later than 4 pm on 29 September 2017 (with such submission duly endorsed that it has been so served and if so, how) and the recipient of any such submission shall have until 4 pm on 13 October 2017 to file and serve any reply (and with such submission similarly endorsed) and any such application shall be heard and determined in chambers.

2. On 29 September 2017 Mr Jarman affirmed an affidavit at C Town before a justice of the peace. The document appears from a Melbourne Registry stamp, to have been received on 5 October 2017. Inquiries reveal that not to be the case. On 29 September 2017 Mr Jarman emailed his affidavit because the “comcourts portal” refused to accept the document because the filed was “closed”. This technological problem should not occur but as it has, it would be ridiculous and unfair to refuse to accept a document which Mr Jarman sought to file on time. 29 September 2017 was a Friday and a day upon which the registry was closed because of a public holiday in Victoria. Thus, because of rule 1.21(4) of the Family Law Rules 2004, the filing was due by 4.00pm on the following Monday which was 2 October 2017.

3. The inquiries to which I have referred come from the correspondence on the file of the court.  The affidavit which, when read, appears to have been intended by Mr Jarman as an application for costs.  He prepared it himself.  He had been represented throughout the proceedings otherwise.

4. As will also be apparent from paragraph (12) of the orders, the submission had to be endorsed as to its service.  In the case of Mr Jarman’s affidavit, no such endorsement appears but Ms Barlow received it because she complained in an email about not receiving a sealed copy.

5. I shall treat the affidavit of Mr Jarman as the application for costs albeit that it has numerous pages.  The relevant part of that affidavit said:

   I asked the court to consider my application for the costs as set out in paragraph 55, and if granted to any degree, provide specific orders for the enforcement of payment for any sums deemed appropriate by the court.   

6. In turn, paragraph [55] reads:

   Since 21 July to Date (sic), a further $3255.60 is also owing as per the attached Invoices (sic) leaving an approximate total of $41,696.20.

7. Many of the father’s paragraphs were irrelevant.  Various interim applications were made along this appalling litigation path but they were dismissed and no application for costs seemed to have thereafter been made.  If they were, the issues were not brought to my attention.  Accordingly, notwithstanding Mr Jarman might think it relevant to the issue of the parenting dispute from its inception, I find that it is not appropriate for him to be allowed to go that far back now. 

8. That position changes however in paragraph [21] of his affidavit where he refers to the orders of the Senior Registrar of 24 August 2016 in which his costs were specifically reserved.  I do not know why that occurred and whether, if another and different application had been made that day, he would have been successful. 

9. It is not appropriate that I search through a box of documents to subjectively guess at what would satisfy s 117(1) of the Family Law Act 1975 (Cth) (“the Act”).

10. At [24] Mr Jarman said it was he who felt that it was premature to “discuss settlement options” with Ms Barlow after the Senior Registrar’s determination.  I infer that he preferred to continue the litigation path whilst Ms Barlow would have resolved it albeit on terms that may not have ended up finding favour with the Senior Registrar.

11. Mr Jarman went on to say that the proceedings were set down for final hearing.  He referred to problems he encountered when Ms Barlow did not file material.

12. At paragraphs [29] and thereafter, Mr Jarman referred to his child support issues but I remain unclear about what relevance they have to the issue of the litigation costs.  He then traversed  the conduct of the proceedings and his complaints about the approach Ms Barlow took.  It is difficult for me to see Ms Barlow as anything other than a desperate, and perhaps misguided parent seeking to maintain a relationship with her daughter as she thought was appropriate.

13. My focus in this immediate issue is Ms Barlow’s conduct as a litigant.  The proceedings were not extraordinarily delayed at least by the court.  Whilst I certainly expressed concern at the relevant time and in the written judgment about the approach Ms Barlow took, I would concede that the expert Ms Slattery’s evidence was somewhat different at trial to that in her report.  Thus, from Mr Jarman’s point of view, he had to (and probably wanted to) finalise the matters with court orders anyway. 

14. One possible argument for criticising Ms Barlow might be that she was ill-advised to run the type of case she began but it is difficult to see how that made any difference to the costs of Mr Jarman because he wanted orders. 

15. At [49] Mr Jarman said that Ms Barlow changed her position in final address and that is correct but at that point, he had not accepted her position nor was he prepared to agree to the desperate position she was then putting because he wanted orders to give him control over his daughter’s life. 

16. Mr Barlow’s lateness in articulating that position as well as filing documents in the way she did is to be decried but on the evidence now presented, it did not seem to seriously affect Mr Jarman’s approach to the orders that he sought. 

17. Because Mr Jarman presented an affidavit relating to these costs issues, Ms Barlow as a litigant in person presumably thought she had to do the same.

18. Ms Barlow’s affidavit has paragraphs which are irrelevant and I propose to ignore them. I specifically ignore paragraphs 2-21, 23-25, 27, 30-37. Much of Ms Barlow’s evidence concerns issues about conduct as a parent rather than as a litigant. What may be relevant, but is hard to envisage, are pieces of evidence about her financial position. That could only be relevant if the court found there was a justification for departing from the principle in s 117(1) of the Act.

19. Ms Barlow tried to reargue the financial issues about which she had been unsuccessful.  She purported to put new “evidence” before the court by reference to a tax agent’s calculations.  That approach is inappropriate in an affidavit in reply to what Mr Jarman seems to be asserting is his application for costs.

20. Insofar as there is an assertion by Mr Jarman of justification for departure from the predominant principle in s 117 of the Act, Ms Barlow said that she had not had the benefit of the orders for electronic communication with her daughter subsequent to handing down of judgment and in relation to the financial enforcement matter she seemed not to understand that her own case was flawed.

21. I appreciate that both of these litigants presented this material without the benefit of legal representation but it is not the court’s function to make their respective cases for them.  As the applicant for costs, the onus of establishing the necessary proofs lies with Mr Jarman.

22. No submissions were put that would enable me to discern the basis upon which an application for costs could be made. There is not sufficient material to enable me to make findings consistent with the court’s obligations in s 117, s 117(2) and s 117 (2A) of the Act. The dilemma is particularly poignant here in a jurisdiction in which s 117(1) of the Act reads:

    Subject to sub-section (2), …each party to proceedings under this Act shall bear his or her own costs.

23. To the extent that the affidavit of Mr Jarman is deemed to be an application, it must fail.  Accordingly, it is dismissed.

I certify that the preceding Twenty-Three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 October 2017.

Associate: 

Date:  16 October 2017