Bartlett & Denny (No 2)
[2022] FedCFamC2F 682
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bartlett & Denny (No 2) [2022] FedCFamC2F 682
File number(s): PAC 5587 of 2017 Judgment of: JUDGE NEWBRUN Date of judgment: 26 May 2022 Catchwords: FAMILY LAW – costs application by Father relating to parenting proceedings - costs Order not made Legislation: Family Law Act 1975 (Cth), s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 12.13(3)
Division: Division 2 Family Law Number of paragraphs: 49 Date of last submission/s: 19 May 2022 Date of hearing: 19 May 2022 Place: Parramatta Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: Taylor & Scott Lawyers Solicitor for the Respondent: Mr Penhall, Penhall & Co Lawyers ORDERS
PAC 5587 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BARTLETT
Applicant
AND: MS DENNY
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
26 MAY 2022
THE COURT ORDERS THAT:
1.The Father’s Application in a Proceeding filed 23 December 2021, seeking an Order, inter alia, that the Mother pay the Father’s costs of and incidental to the parenting proceedings in the fixed sum of $80,000, be dismissed.
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 a pseudonym Bartlett & Denny has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION AND BACKGROUND
This is the determination of the Father’s Application for costs against the Mother in relation to parenting proceedings which were the subject of final Orders made by the Court on 25 November 2021.
The Father’s Application for costs against the Mother was set out in his Application in a Proceeding filed 23 December 2021.
The Mother opposed the Father’s above Application as set out in her Response filed 14 February 2022.
The Father relies on the following evidence filed to support her above costs Application:
(a)Application in a Proceeding filed 23 December 2021;
(b)Affidavit of Mr Bartlett filed 11 February 2022;
(c)Final Orders (Parenting) with Reasons for Judgment by Newbrun J, delivered 21 November 2021;
(d)Child Inclusive Conference Memorandum dated 13 February 2018;
(e)Family Report by Dr B dated 5 November 2019;
(f)Case Outline of Father filed 24 March 2022;
(g)Father’s submissions on costs application filed 20 April 2022.
The Mother relies on the following evidence filed to support her above Response:
(a)Mother’s Affidavit filed 31 March 2021;
(b)Mother’s Response to an Application in a Proceeding filed 14 February 2022;
(c)Mother’s Affidavit filed 7 March 2022;
(d)Mother’s Case Outline filed 21 March 2022;
(e)Mother’s costs submissions in reply filed 29 March 2022.
RELEVANT LEGAL PRINCIPLES
The Court refers to section 117 of the Family Law Act 1975 (Cth) (the Act) in relation to the Father’s costs Application.
Under subsection (1) of section 117, each party to the proceedings bears his or her own costs subject to, inter alia, subsection (2) of section 117. The Court refers to subsection (2) and subsection (2A) of section 117.
Section 117 (2) provides:
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), (5) and (6) 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.
Subsection (2A) of section 117 of the Act states:
(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.
Relevant matters under subsection (2A) will now be considered. The Court has considered all of the parties’ documentary material referred to above and their oral submissions.
(a) The financial circumstances of each of the parties to the proceedings.
Both parties are in full-time employment.
The Mother works as a manager at Employer B. The Mother’s after-tax weekly income is about $1,405. Her 2021 taxation notice of assessment states she has a taxable income of $94,105.
The Mother states that she has an unpaid account of her solicitors, Penhall & Co, in the sum of almost $83,000. She states that she does not have the money to fund further parenting proceedings whilst stating that there are outstanding property proceedings between the parties.
The Father’s Financial Statement filed 18 February 2020 revealed weekly salary before tax as an audiologist of $2,770 and weekly rental before tax from the P Street property in the sum of $365.
The Father states that he estimates the net value of the parties’ Q Street property as being about $970,000, and the net value of the parties’ P Street property as being about $535,000. These properties are jointly owned by the parties.
The Father states that in October 2021 he took out a new personal loan with Westpac in the sum of $35,000 to pay legal fees. He states he also obtained approval for a second loan in the sum of $40,000 with Company R in November 2021 to also help fund his legal fees. He states that his total legal costs of about $123,000 have already been paid by him.
The Mother occupies the Q Street property with the children. The parties’ property proceedings are yet to be determined. Their proposed property adjustment Orders sought differ; the Father seeks, inter alia, an Order that the above property be transferred to the Mother but with the Mother to refinance the mortgage loan and pay $125,000, whereas the Mother seeks, inter alia, an Order that the above property be transferred to her with herself to refinance the mortgage loan. The Mother is the primary carer of the children, spending 9 nights in every fortnight during school term times with them, compared to the Father’s 5 nights in every fortnight.
(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.
Neither party is in receipt of a grant of legal aid.
(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.
The Court has considered all the Father’s contentions and related material relating to what he contends was the Mother’s unreasonable conduct during the course of the proceedings. The Court has considered all the Mother’s contentions and related material in answer to the Father’s contentions in this context.
The first matter that can be considered is the contention of the Father that the Mother’s side was at fault in effectively causing the final parenting hearing to be adjourned on 14 July 2021 (the third day of the final parenting hearing) to 11 October 2021 part heard. The Court is not persuaded that the Mother’s side was significantly to blame for the adjournment. One particular matter that contributed to the adjournment was the fact that a previous subpoena to produce documents issued by the ICL to the children’s school had not resulted in certain counselling notes being produced to the Court. A subpoena to S Street had to be issued to produce the counselling notes and leave to issue such a subpoena with short notice was made by the Court on 13 July 2021 with the subpoena being returnable on the morning of 14 July 2021. Logistical problems arose on the morning of 14 July 2021 in having the Court registry make available to the parties and ICL documents produced to the Court by S Street. Those problems contributed to the family report writer being unable to give her oral evidence on the morning of 14 July 2021.
The Court has not overlooked its findings in its Reasons for Judgment (paragraph 78 and 79) that previously the Mother had not communicated the children’s past counselling to the Father, however in this regard the Court refers to its Reasons for Judgment including the evidence of the family report writer; difficulties in the parties’ communication and working relationship, trust issues between the parties, and elevated anxiety levels in the Mother. Whilst the Court found that the Mother had unreasonably projected her own anxieties in relation to the children spending time with the Father onto at least the eldest child, there was no finding that such conduct by the Mother was committed by her with a view to acting otherwise than what she believed to be in the best interests of the children.
During the morning of 14 July 2021 the Court dealt with certain documentary tenders of documents including Exhibit C, and Exhibit I which occupied some time of the Court. The Mother’s re-examination was conducted on the morning of 14 July 2021, and the Court was required to rule on objections made by the Father’s side during such re-examination which also occupied some time of the Court. The Court informed the parties prior to the luncheon adjournment on 14 July 2021, by which time the family report writer had not yet given her oral evidence, that it had some concern with the family report writer potentially commencing to give her oral evidence on 14 July 2021 but not being in a position to complete it that afternoon. In the circumstances, the Court had considered that it was practical to adjourn the proceedings part heard to 11 October 2021 when it would take the oral evidence of the family report writer and then oral submissions of the parties.
The Father further contends, inter alia, that:
(i)There was an absence of offers by the Mother and she has significantly frustrated the proceedings through baseless allegations of, inter alia, family violence. The Father points to the Court’s findings in relation to family violence made on the balance of probabilities;
(ii)Throughout the proceedings and the final hearing the Mother persisted with her claims that the children were reluctant to spend time with the Father and were even afraid of him.
It is helpful to provide now some factual background context to the Father’s contentions in relation to what he contends was the Mother’s unreasonable conduct throughout the course of the proceedings.
The parties had separated in December 2016.
On 29 January 2018 the parties entered into interim consent parenting Orders imposing professional supervision on the Father in the community for a period of three hours each Saturday.
On 3 August 2018, the parties entered into further interim parenting Orders by consent removing the need for supervision upon the Father. Under those Orders the Father started to spend time with the children every Saturday during certain periods of the daytime.
On 21 December 2018, the parties reached an interim parenting agreement providing that the Father would spend time with the children every Saturday from 8 AM until 4 PM and certain other time and special occasions.
On 8 May 2019 the Court made interim parenting Orders, inter alia, that the children spend time with the Father each alternate weekend from 8 AM Saturday until 4 PM Sunday. On 2 October 2019, by consent, the variation was made such that the children spend time with the Father each alternate weekend from 9 AM Saturday until 5 PM Sunday.
The family report is dated 5 November 2019. The family report writer had stated, inter alia:
(a)the Mother made family violence allegations against the Father, and alleged that the Father had also been observed by others to be aggressive, dishonest and manipulative. She alleged that the Father finds it difficult to contain his anger unless there is surveillance;
(b)the Mother had alleged the children have witnessed the Father physically and emotionally abusing the Mother, and had also been subject to physical and emotional discipline from the Father, which has left them feeling afraid;
(c)the Mother alleged her concern about the Father’s use of alcohol during the marriage and the correlation between his alcohol use and violence. She alleges that since separation she believes the Father may still be drinking to excess and that might be impacting on his capacity to regulate his emotions;
(d)the Mother proposed on a final basis, inter alia, that the children spend from Friday 3 PM to 5 PM on Sunday during term time with the Father;
(e)the Father stated to the family report writer that his communication with the Mother was very poor;
(f)the Mother alleged to the family report writer that the children have never enjoyed a good relationship with the Father both prior to the separation and since;
(g)the Mother alleged to the family report writer that her communication with the Father was fraught and she was afraid of him. She alleged that the level of mistrust between the parties was extremely high and she could not imagine their parenting relationship improving;
(h)the child X, date of birth in 2010, told the family report writer that she would like to stay with the Father for one evening per fortnight only as she misses the Mother too much;
(i)the child Y born in 2012, told the family report writer that he would like to stay with the Father for a longer period of time;
(j)the family report writer stated that the views of the children should be given minimal weight;
(k)the family report writer stated that both parties are afraid that the other is behaving in a way that denigrates them to the children or that significant others are implicated;
(l)the family report writer stated that if there was any truth to the allegations made about the behaviour of the other it would suggest a significant level of immaturity in the way the parties have conducted themselves since the separation;
(m)the family report writer stated that the communication between the parties is fraught and mistrust so high that it was difficult to envisage how, without significant changes, they could move forward and implement Orders for shared parental responsibility. She stated that in the past two years since separation the parties have been unable to demonstrate a capacity to communicate in a child focused way. She stated that the capacity of the parties to exercise parental responsibility jointly was impeded by them maintaining extremely negative narratives of the other and their parenting capacities. In this context the family report writer stated that the Mother accuses the Father of being violent and abusive to her and to the children and having oversights in his attention to the children’s needs;
(n)the family report writer stated that the parties may benefit from engaging with a therapist who specialises in family law to help them rebuild their trust, explore ways of communicating in a more collaborative way and appreciate the damaging impact on the children being involved in the adult issues;
(o)the family report writer stated the parties are massively wary and suspicious of each other and these proceedings have brought out some unbecoming allegations, including violence allegations between them sometimes in the view of the children as well as aggression directed towards the children;
(p)the family report writer stated that it was difficult to disentangle the veracity of the allegations made between the parties, including violence allegations. The family report writer stated that the Court would need to decide the extent and nature of family violence that existed in the family. She stated that if such violence was as serious as the Mother alleged, her fear of the Father and apprehensions for the children would be warranted; (Court’s italics)
(q)the family report writer stated that both parties seem to present with some personality traits that are characterised by need for control, rigidity and lack of openness to views that do not concur with their own. She stated that the parties’ inflexible views of the other and unwillingness to appreciate that the other parent has the children’s best interests at heart may lead them to behave in ways that placed the children and their relationship with each parent at risk;
(r)the family report writer recommended, inter alia, that the children live with the Mother; that the time that the children spend with the Father be incrementally increased by one evening every three months so that they eventually spend 4 to 5 evenings per fortnight with the Father; school holidays and special occasions be shared between the parties.
The Mother contends, in relation to the family report, that its contents could not be tested until the final hearing was conducted, particularly in relation to family violence allegations made by the Mother, which had been stated by the family report writer. She contends that the Father’s offers of settlement, referred to below, should, inter alia, take this reality into account. In the view of the Court, there is force to these contentions. The Court would also add, in this context, that its findings in its Reasons for Judgment, in relation to family violence allegations, were determined on the balance of probabilities; the Court had made no finding that the Mother’s family violence allegations were, for example, false or untruthful.
The Mother refers to the family report writer’s recommendation that the time the children spend with the Father be incrementally increased by one evening every three months so that they eventually spend 4 to 5 evenings per fortnight with the Father. The Mother effectively contends that it was reasonable for the Mother to seek to cross-examine the family report writer at trial, inter alia, with a view to establishing that it was not in the best interests of the children to spend 5 evenings per fortnight with the Father during school term time, but rather some lesser period, and noting her family violence allegations to be tested at trial. There is force to these contentions of the Mother.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.
Not applicable.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings.
The Father’s proposal at the final hearing included a proposed Order that during school term times the children live with the parties in an equal time shared care arrangement. This proposed Order was not made by the Court in its final Orders.
The Mother’s proposal at the final hearing including a proposed Order that during school term times the children spend time with the Father each alternate weekend from Friday 3 PM until before school Monday 8:30 AM (effectively three nights each fortnight during school term times). This proposed Order was not made by the Court in its final Orders.
(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.
The Father relies upon a number of parenting offers of settlement to the Mother.
On 6 December 2019, the Father’s solicitors made an offer to the Mother’s solicitors relating to time with the Father for Christmas 2019 until either mediation or an interim hearing. On 16 December 2019 the Mother’s solicitors responded with an alternative offer of time. On 18 December 2019 the Father’s solicitors responded accepting certain time offered and made another offer. On 20 December 2019, via the Mother’s solicitor’s email to the Father’s solicitors, those solicitors advised that the Mother consented to a certain arrangement over Christmas 2019.
On 9 January 2020 the Father’s solicitors made an offer to the Mother’s solicitors “on the following basis, in principle” and which stated, inter alia, that there be an incremental increase in the children’s time with the Father by one night per fortnight every three months starting term one, 2020, until they reach five nights per fortnight; that the children spend half of their school holidays with the Father starting at the end of Term 1, 2020; that the Mother be restrained from having 2 named Pastors involved in decisions relating to the children and from allowing them to attend changeovers; and that the children be permitted to travel overseas with each party during the school holiday time with them. It concluded by stating, “If agreed, we will prepare draft final parenting consent orders for review and execution.”
On 23 January 2020 the Father’s solicitors wrote to the Mother’s solicitors, stating, inter alia, that, without prejudice, save as to costs, the Father offers to reduce the gradual buildup of his time with the children on an interim basis from five nights to only four nights, stating, “The other points in his offer of 9 January 2020 still apply”.
On 25 March 2020 the Father’s solicitors wrote to the Mother’s solicitors seeking that the Father spend time with the children for seven days, during the school holidays, from 10 April 2020 until 17 April 2020.
On 8 April 2020 the Mother’s solicitors wrote to the Father’s solicitors referring to the Father’s solicitor’s letter of 25 March 2020 regarding parenting. It was stated, inter alia, that the Mother did not agree that it was in the best interests of the children for them to spend time with the Father as proposed in that letter. The Mother’s solicitors advised that there were issues which had not been addressed being X’s wishes that she not spend more than one night a fortnight with the Father; her emotional and psychological well-being; and the children’s attitudes and behaviours when returning from spending time with the Father, in particular, X’s more frequent bedwetting and the children’s more aggressive attitude and outbursts. In this context, the Mother’s solicitors stated that the Mother was of the view that if those matters were not addressed it would have grave impacts for both children’s psychological well-being. The Mother’s solicitor stated that the Mother was of the view that the children needed to obtain therapeutic assessment and treatment prior to any increase of time with the Father. The Mother’s solicitors noted that these matters were currently for determination at an interim hearing on 14 May 2020. The Mother’s solicitor stated that in relation to the family report, the Mother was of the view that the family report did not adequately address these issues, as well as the impact of these issues on both children. The Mother’s solicitors refer to the Father’s drinking habit not dealt with by the family report writer which was a matter of concern to the Mother, particularly with the Father’s request for an increase of time with the children. The Mother’s solicitors stated their instructions that the Father had been caught drink driving and had his driver’s license suspended due to him being caught drink driving. Finally, the Mother’s solicitors state that as a result of these matters, the Mother does not adopt the family report writer’s recommendations for an increase of time and stands by her position as set out in her Amended Application in a Case.
On 29 May 2020 the Court handed down its interim parenting judgement providing, inter alia, that the children during school term time spent time with the Father, in the absence of agreement, for two nights per fortnight for three months, for three nights per fortnight following stage I, and for four nights per fortnight following stage II. The Court made other miscellaneous interim parenting Orders relating to, for example, interim Orders 9, 10, 11, 12, 13, 14, 16-18, that were not the subject of offers by the Father’s solicitors in their letter dated 9 January 2020. Further, in that latter letter, the Father’s offer contained a proposed restraining order relating to the 2 Pastors and a proposed overseas travel order that were not the subject of the Court’s interim parenting orders made on 29 May 2020.
On 10 March 2021 the Father’s solicitors offered to the Mother’s solicitors, on a final basis, that the children spend term time with the Father five nights per fortnight commencing 30 April 2021. Again, the recommendations of the family report writer was that the children spend time with the Father, on an incrementally increasing basis, for 4 to 5 nights per fortnight during school term time. (Court’s italics)
Again, it was not unreasonable for the Mother to seek to cross examine the family report writer in relation to it not being in the best interests of the children to spend time with the Father 5 nights per fortnight during school term time, especially in circumstances where the family report writer had confirmed the parties’ significant difficulties with communication with each other, and lack of trust in each other.
Moreover, it was not unreasonable for the Mother to seek to cross-examine the family report writer with a view to having the family report writer concede that the children spending time with the Father 4 nights per fortnight or less during school term time was an order in the best interests of the children.
Importantly, and again, the family report writer had referred to the Court needing to decide the nature and extent of family violence that existed in the family. The family report writer had herself stated, for example in paragraph 120 of her family report, that it was difficult to disentangle the veracity of the parties competing allegations given that they had provided such different accounts. She had stated that if the Mother’s family violence allegations were as serious as she alleged, her fear of the Father and apprehensions for the children were warranted.
The parties personally negotiated between themselves in relation to final parenting Orders between about 10 June 2021 and 21 June 2021. In some of the Mother’s messages to the Father she referred to interference with the children’s routine in the context of the Father wanting 5 nights per fortnight, ultimately suggesting four nights each fortnight so as to have minimal interference with the children’s routine schooling and homework. Again, the family report writer had recommended 4 to 5 nights per fortnight that the children spend with the Father during school term time. (The Court does not accept the submissions of the Mother’s solicitor that these negotiations were privileged. The Father effectively invited the Mother to negotiate with him, separate to the solicitors, and the Mother proceeded to exchange text messages with him, without the Mother expressing any privilege contention. It was always open to the Mother to have sought advice from her solicitors as to whether any private negotiations with the Father in relation to parenting should be stated to be privileged and if she received such advice that such negotiations should be privileged she then could have communicated that advice to the Father.)
g) Such other matters as the Court considers relevant.
The Father refers to his Application in a Case filed on 25 June 2020, returnable 1 September 2020, seeking costs of and incidental to his Response to an Application in a Case (Parenting) filed 31 January 2020 in the fixed sum of $8,000. In this context, the Father refers to his offer of 23 January 2020 to the Mother’s side. The Father’s written submission states that his application for a lump sum costs order of $80,000 includes this $8,000 costs claim.
Taking into account all the above discussed matters, under section 117(2A) of the Act, it will not be just that the Mother pay the Father’s costs as sought. The Father’s costs application will be dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 27 May 2022
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