Bednary & Nollet
[2023] FedCFamC1F 214
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bednary & Nollet [2023] FedCFamC1F 214
File number(s): MLC 14352 of 2020 Judgment of: JOHNS J Date of judgment: 5 April 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –– application for adjournment of not less than six months – where the father seeks an adjournment to allow his lawyers time to familiarise themselves with proceedings –where father seeks to adjourn to engage in dyadic therapy with child – where mother opposes adjournment – where father has not complied with previous court orders – where the father has failed to act on recommendations for dyadic therapy made in 2021
FAMILY LAW – COSTS – application for costs on an indemnity basis – where delay was caused due to father’s non-compliance with orders – where the father has been wholly unsuccessful in his application – order made for costs on party/party basis – costs fixed in the sum of $5,300
Legislation: Family Law Act 1975 (Cth) ss 102NA(2), 117(1), (2) & (2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rules 12.13(4), 12.17(1) & (3)
Cases cited: Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
I and I (1995) FLC 92-625
Kohan & Kohan (1993) FLC 92-340
Mertens & Mertens [2016] FamCAFC 136
Munday v Bowman (1997) FLC 92-784
Prantge & Prantage [2013] FamCAFC 105
Division: Division 1 First Instance Number of paragraphs: 82 Date of hearing: 20 March 2023 Place: Melbourne Counsel for the Applicant: Ms McCreadie Solicitor for the Applicant: MST Lawyers Counsel for the Respondent: Ms Colla Solicitor for the Respondent: Schetzer Papaleo Family Lawyers ORDERS
MLC 14352 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BEDNARY
Applicant
AND: MS NOLLET
Respondent
order made by:
JOHNS J
DATE OF ORDER:
20 March 2023
THE COURT ORDERS THAT:
1.That order 1 of the orders dated 3 February 2023, be varied such that all applications for final orders be adjourned for hearing before Justice Johns on 15 May 2023 at 10 am as a four-day matter (with priority) and that the evidence in chief of all witnesses be given by affidavit.
2.That order 5 of the orders dated 3 February 2023 be varied such that by 4pm on 3 April 2023, the respondent file and serve:
(a)An amended response setting out with precision what orders are being sought and;
(b)The affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon from previous hearings cannot be relied upon as evidence in chief)
3.That order 6 of the orders dated 3 February 2023 be varied such that by 4pm on 12 April 2023 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.
4.That otherwise the orders dated 3 February 2023 operate in full force and effect.
5.That order 2 of the orders dated 25 August 2022 be suspended.
6.That the parents and X attend upon Ms B each alternate Thursday commencing 23 March 2023 at such times as directed by Ms B at the sole expense of the Father for the purpose of the father and X participating in dyadic therapy.
7.That the parties authorise the family report writer in this matter Dr C to liaise with Ms B should she wish to do so at the parties’ joint expense.
8.The father be at liberty to provide copies of the following documents to the Ms B and/or to his treating psychologist(s):-
(a)Dr E’s Psychiatric Assessment dated 4 June 2021;
(b)Dr C’s Family Report dated 29 June 2021;
(c)Dr C’s Updated Family Report dated 18 August 2022; and
(d)All past and future reports from contact supervisors.
9.That the Father pay the Mother’s costs on a party/party basis fixed in the sum of $5,300.00 within 14 days of the date of these Orders.
10.Certify for counsel.
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 Bednary & Nollet has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
By Application in a Proceeding filed 10 March 2023 the father, Mr Bednary, seeks orders that:-
·The final hearing listed to commence before me on 8 May 2023 be adjourned to a date not before 1 November 2023;
·That the time for filing trial documents pursuant to orders made by me on 3 February 2023 be extended;
·That the mother facilitate the child’s attendance upon a nominated Psychologist for the purposes of dyadic therapy with the father on specified dates; and
·That the father be permitted to provide to his treating Psychologist copies of reports prepared in these proceedings, including a psychiatric assessment dated 4 June 2021, the Family Reports prepared by Dr C dated 29 June 2021 and 18 August 2022 and supervision reports produced by the contact supervisors.
The husband’s application is supported by his affidavit filed 10 March 2023 and a further affidavit in reply filed 17 March 2023.
The mother, Ms Nollet, opposes the father’s application to adjourn the proceedings. She consents to arrangements for the child to attend dyadic therapy with the father, albeit that she proposes that such therapy occur fortnightly and not weekly, and on a Thursday, being a day when she does not work and is able to facilitate the child’s attendance. Further, in circumstances where the child’s time with the father will increase from monthly to fortnightly whilst that therapy is undertaken, the mother proposes that the current arrangement that the father spend supervised time with the child on one occasion per calendar month be suspended.
The mother relies upon the following documents:-
·Response to an Application in a Proceeding filed 16 March 2023; and
·Affidavit of the mother filed 16 March 2023.
At the conclusion of the hearing, I made orders as set out at the commencement of this Judgment, summarised as follows:-
·That the final hearing be adjourned for a period of one week, to commence on 15 May 2023;
·That the time for compliance with my trial directions made 3 February 2023 be extended;
·That the operation of order 2 of the 25 August 2022 orders be suspended;
·That the father and X participate in fortnightly dyadic therapy with Ms B;
·That Ms B be provided with Family Reports and Psychiatric Assessments completed for the purpose of this proceeding; and
·That the father pay the mother’s costs on a party/party basis, fixed in the sum of $5,300.
These are my Reasons for Judgment with respect to those orders.
BACKGROUND
The mother was born in 1984 and is aged 38 years. She is engaged in part-time employment as a professional.
The father was born in 1982 and is aged 40 years. He is self-employed and describes himself as a Business Owner.
The parties commenced cohabitation in 2017 and separated on 27 September 2020. The mother alleges that separation occurred following an alleged incident of family violence perpetrated by the father. At that time, Victoria Police applied for and obtained an interim Intervention Order against the father for the protection of the mother and the child. There is a current final Family Violence Intervention Order against the father for the protection of the mother and the child, which will expire in 2024.
The parties’ child, X, was born in 2020, and was only a few months old at the time of the parties’ separation. He has lived with the mother and has had only limited supervised time with the father since the parties’ separation. At the time of hearing, X was spending time with the father on one occasion per calendar month.
The mother commenced proceedings seeking final parenting and property orders in December 2020. The father filed his Response to Application for Final Orders in February 2021.
Final property orders were made by consent in June 2021.
In February 2021 orders were made that the parties attend for the preparation of a Family Report. That report was prepared by Dr C and is annexed to her affidavit filed 14 July 2021. Dr C interviewed both the mother and the father for the purposes of that report and conducted observations of each party with the child, who was then nearly one year old. Dr C made a series of recommendations at the conclusion of her report including that:-
·The child continue to live primarily with the mother;
·The child spend time with the father twice per week for between two to three hours;
·The father and the child engage with an Infant Mental Health Specialist (ideally trained in the ‘Watch, Wait and Wonder’ or other evidence-based approach) for treatment aimed at building the father’s ability to be attuned to the child; and
·The family should re-present for an updated Family Report assessment after the father-child intervention has occurred, or after approximately 12 months.
The parties also attended upon Dr E for the purpose of Psychiatric Assessment. Dr E’s report dated 4 June 2021 is annexed to his affidavit affirmed 15 July 2021. Dr E recommends that the father engage with a Clinical Psychologist to “improve his self-regulation and interpersonal skills under the auspices of anger management”.[1] Otherwise, Dr E did not consider that the husband required psychiatric treatment. As to the mother, Dr E concluded that the mother was receiving appropriate professional help with her Perinatal Psychiatrist and that there was no indication for additional professional input.
[1] Psychiatric Assessment of Dr E dated 4 June 2021, [29].
Following the release of those reports, on 20 July 2021 the parties entered into consent orders that made provision for the father to spend supervised time with the child on two occasions each week. Orders were also made for the father and the child to engage with an Infant Mental Health Specialist as recommended by Dr C and for the preparation of an updated Family Report in April 2022.
It is common ground between the parties that following the making of those orders, the father and the child had only one dyadic therapy session as recommended by Dr C, which occurred in August 2021. It is evident from the material filed that there were difficulties between the parties in coordinating a mutually convenient appointment schedule. As a result, the father did not continue with the recommended therapies.
Further, the father did not engage with a Psychologist, as recommended by Dr E.
At the time the July 2021 orders were made, the father was represented by Counsel. On 23 May 2022, the father’s Lawyers filed a Notice of Ceasing to Act and thereafter the father represented himself.
In August 2022, the parties attended upon Dr C for the preparation of a second Family Report, which is annexed to her affidavit filed 18 August 2022. Again, Dr C interviewed both the mother and the father for the purposes of her assessment and conducted observations of the child, who was then aged one year and 11 months, with both parents.
In her second report, Dr C observed that:-
·The father remains at times “mis-attuned” to the child;[2]
·An attuned relationship between the father and the child is still in need of greater development, with the father requiring professional assistance in this regard;[3]
·The father has extreme difficulties in perspective-taking, impressing at times as ego‑centric and controlling, with rigidity;[4] and
·The father appears to have little insight into issues raised, has not engaged in recommended interventions and seems to have no intention to engage with such interventions.[5]
[2] Updated Family Report prepared by Dr C dated 18 August 2022, [107].
[3] Ibid.
[4] Ibid, [108].
[5] Ibid, [109].
Dr C considered that the continuation of frequent supervised time was not suitable as a long-term solution for the child and ultimately recommended that supervised time be reduced to once every four weeks. It was her view that in order for the father to progress to having substantial time with X, it was incumbent on him to first show that he has attempted to address, and has shown development in, the concerns identified by Dr C.[6] Dr C also observed that X requires and deserves longer-term stability and predictability in his parenting arrangements and for the Court matters to be finalised.[7]
[6] Updated Family Report prepared by Dr C dated 18 August 2022, [111].
[7] Ibid.
On 25 August 2022, orders were made by the Court that the father’s supervised time occur on one occasion per calendar month. Further, orders were made that in the event the father elects to engage in an infant support course as recommended by Dr C in her two reports, the mother should facilitate the child’s reasonable attendance at such appointments and that such therapy ought occur at the commencement of the father’s time with the child if reasonably possible.
The matter was allocated to my docket in October 2022.
On 3 February 2023 I made orders fixing the matter for final hearing before me to commence on 8 May 2023. The father was self-represented at that hearing. Given the current final Family Violence Intervention Order, I also made an order that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) will apply to any cross-examination in the proceedings. Further, the father was ordered to file his trial affidavit material by 4.00pm on 3 March 2023. At the time I made those orders, the father had not complied with the orders of 17 October 2022 that required that he file his Amended Response to Application for Final Orders by 16 December 2022.
The father had still not complied with my orders of 17 October 2022 or 3 February 2023 at the time of hearing of this application.
Should the final hearing be adjourned, as sought by the father?
Following the making of trial directions, the father engaged lawyers who filed a Notice of Address for Service on 7 February 2023. Notwithstanding the engagement of those lawyers, the father has not filed his Amended Response in the proceedings, nor has he filed his trial affidavit material. It is his position that the final hearing ought be adjourned for a period of at least six months to enable him to engage in the therapeutic interventions which were initially recommended to him in June 2021 by both Dr E and Dr C. In the case of Dr C, those recommendations were repeated in her second report of August 2022.
In March 2023, some 20 months after Dr E first recommended that he do so, the father commenced attending a Psychologist and has had two sessions with that practitioner at the time of hearing.
The father now proposes that he and the child commence weekly attendance upon a Psychologist for dyadic therapy, as recommended by Dr C. The father maintains that he wishes to have substantial and significant time with X and that it is necessary for those therapeutic interventions to occur before the Court can make any assessment as to final orders with respect to future parenting arrangements.
The mother’s position is simple. The recommendations of the experts have been known to the parties since June or July 2021. Other than one session of therapy with the then-agreed Psychologist, the father has not pursued dyadic therapy as recommended by Dr C. Only when the proceedings have progressed to the door of the Court before a final hearing has the father seen fit to take any action or engage with therapies in accordance with the recommendations of the experts appointed throughout the proceedings.
It was submitted, and I accept, that the mother agreed to the appointment of the original therapist, Dr D. To facilitate such therapy, the mother obtained a mental health plan for the child, and confirmed a preparedness to facilitate attendance of the child at the therapist’s rooms in Suburb F. Ultimately, the father did not pursue that therapy. I accept that this is so having regard to [15] to [17] of the father’s affidavit filed 10 March 2023, wherein he deposes as to the position of the parties at that time as follows:-
15. On 13 September 2021 Schetzer Papaleo wrote to [G Lawyers] advising that [Ms Nollet] could not facilitate [X]'s attendance at [Dr D]'s [Suburb H] clinic due to the travel distance. [Ms nollet] agreed to facilitating [X]'s attendance at [Dr D]'s [Suburb F] office on Wednesday mornings. However, [Ms Nollet] did not agree to [X] spending supervised time with me after our appointments as, in [Ms Nollet]'s view, it was not within [X]'s best interests to attend upon [Dr D] and have supervised time 'back-to-back'. This, in effect, reduced my already limited and supervised time with [X] to each alternate Wednesday for 3 hours and each Saturday for 3 hours (totalling 9 hours each week, reduced from 12 hours). Schetzer Papaleo proposed that I could reduce the frequency of appointments with [Dr D] from fortnightly to once every three weeks, however, this proposal would still have reduced my already limited time with [X]. Further, this proposal would have slowed my and [X]'s progress at dyadic therapy by reducing the frequency of appointments, thereby delaying a movement toward increased and unsupervised time. No proposal was made by Schetzer Papaleo for make-up supervised time.
16. On 14 September 2021 [G Lawyers] wrote to Schetzer Papaleo advising that I did not agree to the reduction of my time, and that it was my preference to source another therapist who could accommodate my and [Ms Nollet]'s schedules. Schetzer Papaleo responded by a letter sent later that same day and invited me to reconsider the time of the appointments with [Dr D], but still proposed a reduction in [X]'s supervised time with me (with such time to occur for 2 hours, rather than 3 hours on Wednesday). This proposed reduction in time would have restricted the already limited time I had with [X] each week to develop my relationship with [X] and implement skills developed during dyadic therapy. Accordingly, I decided to make enquiries with other prospective therapy providers. Schetzer Papaleo did not accept that their proposal caused a reduction of time with [X], and took the view that I should accept that the therapy appointments constituted 'makeup time' with [X]. Further letters were sent between the solicitors about these matters, from [G Lawyers] to Schetzer Papaleo on 28 September 2021, and from Schetzer Papaleo to [G Lawyers] on 12 October 2021.
17. Ultimately, no agreement was reached about the arrangements for [X] and I to attend dyadic therapy even though I placed myself on a wait list with [Dr D] at one time, I struggled to continue funding my ongoing legal fees, my ongoing supervised time with [X], and my everyday living expenses.
Based on the father’s evidence, it appears that his position was that rather than accept any of the compromises suggested on behalf of the mother, he did not engage with the recommended therapeutic interventions at all. The consequence of that inaction is that since that time, his periods of time with the child have been reduced in frequency, and he now finds himself in the position of commencing a final hearing without having completed the recommended therapeutic programmes. It would appear from his affidavits that the father seeks to lay blame at the feet of the mother for the circumstances in which he now finds himself. Having regard to the father’s own evidence with respect to the communication between the parties through their lawyers in August and September 2021, I do not accept this to be so.
Dr E’s recommendations that the father engage with a Psychologist were contained in his report dated 4 June 2021. It is only in March 2023 that the father has seen fit to engage with a Psychologist in accordance with that recommendation.
It was submitted on behalf of the mother, and I accept, that at the hearing before me on 3 February 2023 the father opposed the reappointment of Dr C to prepare the updated Family Report. At that time, the father did not accept the previous reports and recommendations of Dr C. Notwithstanding his then opposition to the reappointment of Dr C, the father now seeks to embrace the recommendations in her two earlier reports and submits that the trial ought be adjourned to enable him to engage in those therapies.
It was submitted on behalf of the mother that a delay in the finalisation of the proceedings would have a significant and detrimental impact upon the mother, and therefore X. The reality is that the mother has been the sole carer for X since his birth. Those challenges are compounded given that the father pays no child support and in addition to her responsibilities to support X, she continues to carry the burden of her legal costs.
It was conceded by the father during the hearing that, other than the sum of $1,236.09 deducted from his account by the Child Support Agency in December 2022 pursuant to enforcement proceedings, the father has paid no child support for the child since the parties’ separation.
The determination of any adjournment application is always a delicate balancing act. The Court has a wide discretion to grant adjournments, but it is not an unfettered discretion. In the decision of Mertens & Mertens [2016] FamCAFC 136, Kent J helpfully summarised the matters to be taken into account when determining an application for an adjournment as follows:-
[3]The Court obviously has a wide discretion to grant adjournments but it is not a discretion which is unfettered. The Court should take into account the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to other parties that cannot be compensated by way of orders for costs and indeed, since decisions of the High Court, for example in Aon Risk Services v Australian National University [2009] 239 CLR 175, the effect also upon the Court and other litigants before the Court of the adjournment.
[4]The fundamental consideration is whether the adjournment is necessary to do justice as between the parties.
[5]Added to that which I have already observed, s 97 (3) of the Family Law Act 1975 (Cth) (“the Act”) imposes an obligation upon the Court to endeavour to ensure that proceedings are not protracted and the Family Law Rules 2004 (Cth) (“the Rules”) express objectives for cases to be resolved in a just and timely manner at a cost to the parties and to the Court which is reasonable in the circumstances of the case. I refer to, for example, r 1.04 of the Rules. Notably the Rules also impose responsibilities upon parties to proceedings. For example, r 1.08 imposes an obligation upon parties to ensure their readiness for court events; and to give notice as soon as possible of an intention to apply for an adjournment…
The objectives of the Court, to which Kent J referred, to facilitate a just and timely resolution of disputes according to law and as quickly, inexpensively and efficiently as possible have been restated in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Rules"). Having regard to those considerations, I am not persuaded that it is appropriate in the circumstances of this case to grant an adjournment of the proceedings.
These proceedings have been on foot for almost the entirety of the child’s life. They have placed a significant burden upon the mother which I have no doubt has affected the child. The father has effectively “sat on his hands” since the initial recommendations were made for engagement in therapeutic interventions in June 2021. It is only with a looming final hearing that the father has seen fit to implement any of those recommendations and it is his expectation that the proceedings ought be delayed to enable that to occur. I do not accept that that is an appropriate position or one that has any regard for what is in the child’s best interests.
The father will be able to pursue the recommended therapies if he is truly motivated and committed to doing so; the updating Family Report, to be prepared in April 2023, will assess the position of the parties and the child at that time. The father will be able to adduce evidence from his treating Psychologist as to his progress for the purposes of the final hearing.
However, I do not accept that it is appropriate that the trial be delayed to enable the father to complete those processes; given the history of the father’s engagement in the Court process, I have serious reservations as to the father’s commitment to those programmes and am not persuaded that the final hearing should be delayed for that purpose.
Further, the Court must take into account the needs of not only the litigants in these proceedings but also the impact of any delay upon the Court’s business. Were the Court to accede to the father’s application for an adjournment, inevitably another matter would be delayed in the finalisation of its proceedings. Already, the father has had many indulgences from the Court; that he seeks to pursue an adjournment application in the face of his non-compliance with Court orders requiring him to engage in therapy, file an Amended Response and trial affidavit serves only to amplify the Court’s concerns as to his bona fides with respect to his pursuit of these proceedings. Accordingly, the father’s application for an adjournment of the final hearing has been dismissed.
At the time of hearing, the matter was listed as the second matter in my docket to be heard on 8 May 2023. In order to ensure that the hearing is able to proceed on its listed date, having regard to the history of the dispute and its impact on the child, I will relist the matter as the primary case in my list to commence a week later, at 10.00am on 15 May 2023.
I have made further orders to extend time for the father’s compliance with orders for the filing of his trial affidavit material.
As to the issue of the attendance of the father and child at dyadic therapy, it was common ground between the parties that such therapy ought commence with Ms B. The issue between the parties was as to the frequency of such attendances, particularly in circumstances where the mother is engaged in paid employment and is almost solely responsible for the child’s support.
The father sought that such therapy occur on a weekly basis, alternating on Wednesday and Thursday. Given the requirement for her to travel with the child to Suburb J, approximately 30 minutes from her home, to attend such sessions, the mother confirmed that she was able to commit to such therapy occurring on a fortnightly basis on Thursday, being the day of the week that she does not work.
Having regard to the mother’s responsibilities to the care and support of the child, I am satisfied that it is appropriate that such therapeutic intervention occur on a fortnightly basis as proposed by her and that, if practicable, such appointments be arranged to coincide with the day on which she does not work, that being a Thursday. Accordingly, I made orders to that effect.
In circumstances where Dr C has made recommendations that the child’s time ought to occur once every four weeks, I am satisfied that it is in the child’s best interests that the father’s monthly supervised time be suspended. The effect of the orders for fortnightly therapy is that X will be spending fortnightly supervised time with the father in that setting. Having regard to the observations and recommendations made in Dr C’s second report, to which I have earlier referred, I am satisfied the previous spend time orders should be suspended whilst that therapy is occurring.
COSTS
At the conclusion of the hearing, the mother made an application that the father pay her costs of and incidental to the application on an indemnity basis, fixed in the sum of $10,000. In the alternative, she sought that the father pay her costs on a party/party basis fixed in the sum of $5,300.
The father opposed the mother’s application, albeit it was conceded by his Counsel, sensibly in my view, that the quantum of costs sought on a party/party basis could not be challenged.
Legal Principles
The question of costs is governed by s 117(1) of the Family Law Act 1975 (Cth) ("the Act") which provides:-
Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
On that basis, the general rule in proceedings under the Act is that, subject to the provisions of s 117(2), the parties to a proceeding shall bear their own costs of that proceeding.
Section 117(2) of the Act provides that:-
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.
Section 117(2A) of the Act provides that in determining what, if any, order should be made under subsection (2), the Court must have regard to the following:-
(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.
Should it be determined that it is just to make an order as to costs, costs are not awarded to punish the unsuccessful party, but rather are compensatory in the sense that they are awarded to ameliorate the expense of the successful party resulting from their having been required to participate in the proceedings.
The discretion afforded by s 117 of the Act is broad and the relevant factors contained in s 117(2A) are not to be read in a restrictive way; any one of those factors may found an order for costs, but all factors must be taken into account and balanced (I and I (1995) FLC 92-625).
The method of calculation of costs is prescribed by r 12.17(1) of the Rules, which provides:-
(1) The court may order that a party is entitled to costs:
(a) of a specific amount; or
(b) as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c) to be calculated in accordance with the method stated in the order; or
(d) for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
Rule 12.17(3) sets out matters that may be considered in the calculation of costs, providing that:-
(3) In making an order under subrule (1), the court may consider the following:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c) the rates ordinarily payable to lawyers in comparable proceedings;
(d) whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;
(e) the time properly spent on the proceedings, or in complying with pre-action procedures;
(f) whether expenses (paid or payable) are fair, reasonable and proportionate.
Having regard to the above matters, I consider that I hold a broad discretion in respect of matters relating to any costs orders.
The mother’s application for costs principally relies upon the considerations identified at sections 117(2A)(a), (c) and (e); that is, the mother contends the relevant considerations are:-
·The financial circumstances of the parties;
·The conduct of the parties in relation to the proceedings; and
·Whether any party has been wholly unsuccessful in the proceedings.
Section 117(2A)(a) - The financial circumstances of the parties
The mother submits that the father is self-employed, lives in an unencumbered property and holds two investment properties. There was no challenge to that submission by the father.
The mother is engaged in part-time employment as a professional and has an income of $140,000 gross per annum. She is solely responsible for the support of the parties’ only child. The father pays no periodic child support.
It is the mother’s position that the father has the property, income and resources to meet an order for costs. The father did not make any submission in response to that contention, save that it was submitted that he bears the costs associated with his supervised time with the child.
I am satisfied having regard to the submissions made that the father does have the financial capacity to meet an order for costs.
Section 117(2A)(b) – Whether either party is in receipt of Legal Aid
Neither party is in receipt of Legal Aid.
Section 117(2A)(c) – The conduct of the parties in relation to the proceedings; and
Section 117(2A)(d) – Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
The mother submits that the father has failed to appropriately comply with orders of the Court. He is in breach of the orders made in October 2022 that he file an Amended Response to Application for Final Orders in the proceedings, and he comes before the Court seeking the indulgence of adjournment of the proceedings, notwithstanding that circumstance.
Further, the mother submits that the father seeks an adjournment in circumstances where he has not complied with or abided by the recommendations of Dr C in her two family reports.
There is much force in those submissions and I am satisfied that regard ought be had to the father’s conduct and failure to comply with Court orders in the determination of the mother’s costs application.
Section 117(2A)(e) – Whether a party to the proceedings was wholly unsuccessful
It was submitted on behalf of the mother that the father has been wholly unsuccessful in his application that there be an adjournment of the proceedings for a period of six months. I accept that submission.
It was submitted by Counsel for the father that the Court had in fact adjourned the proceedings for a period of one week, and therefore the father did obtain an adjournment, albeit of much more limited compass than that sought by him. I do not accept that submission; that this occurred is not as a result of any application made by the father, but rather upon a determination by the Court that, having regard to the matters listed on the original hearing date, the matter ought be adjourned for one week to ensure that it proceeds uninterrupted on its listed date.
The mother also submitted that it was unnecessary for the father to have made any application in relation to the mother’s support and participation in the dyadic therapies recommended by Dr C given that orders had previously been made on 25 August 2022 that required the mother to facilitate such attendance. The mother also relied upon the proposals made by her in September 2021 for such therapies to be implemented, to which I have earlier referred, and which are conceded by the father in his affidavit filed 10 March 2023.
I am satisfied having regard to the mother’s earlier proposals and the orders made that the father’s application for orders seeking the mother’s co-operation to facilitate the recommended therapies was unnecessary.
Section 117(2A)(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 such offer
Neither the mother nor the father made any submission in relation to offers to settle.
Section 117(2A)(g) – Any other matters the court considers relevant
There are no other relevant considerations.
Are there circumstances that justify an order for costs?
Having regard to my earlier findings as to the father’s conduct in the proceedings, his failure to comply with orders and the fact that he has been unsuccessful in his application for a six month adjournment of the proceedings, I am satisfied that those matters justify an order for costs.
Should costs be paid on an indemnity or party/party basis?
In support of her application for indemnity costs, the mother relies upon the legal services costs agreement between she and her lawyers dated 8 June 2021. Having regard to that document, I am satisfied that the mother has informed the Court of the costs agreement between she and her lawyers and the terms of those agreements in accordance with Rule 12.13(4).
The law with respect to indemnity costs is well settled; the Full Court observed in Kohan & Kohan (1993) FLC 92-340 that the Court should not depart lightly from the ordinary rules with respect to costs. In the decision of Prantage & Prantage [2013] FamCAFC 105, the Full Court confirmed that indemnity costs should only be awarded if the case has some special or unusual feature.
In Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225, Sheppard J identified circumstances that might constitute special or unusual features so as to justify an award of indemnity costs. Usefully, Holden CJ in Munday v Bowman (1997) FLC 92-784 at 84,660 drew from the decision of Sheppard J the following examples:-
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud.
(c)Evidence of particular misconduct causing loss of time to the court and to other parties.
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.
(e) An imprudent refusal of an offer to compromise.
(Citations omitted)
The category of circumstances which enliven the discretion to award indemnity costs are not closed; the circumstances do not need to come precisely within the examples provided by Sheppard J.
It is submitted on behalf of the mother that her costs in the proceedings were incurred entirely unnecessarily due to the father’s conduct. Had the father complied with the recommendations of Dr C made in June 2021 and the orders of the Court, including orders made 25 August 2022, 17 October 2022 and 3 February 2023, there would have been no need for such application to be made. That he now seeks an adjournment of the proceedings is as a result of his own delinquent conduct.
The father opposes an order for costs, in particular indemnity costs. It is submitted that his conduct is not so extraordinary as to justify an award of indemnity costs. The father acknowledges through his Counsel that he has been tardy in his compliance with Court orders and that he has not attended to his engagement with therapeutic interventions as has been recommended and ordered. That this is so, he says, is in part due to his failings as a self-represented litigant. The father has now engaged with lawyers and seeks to remedy his defaults under previous orders. To that end, he has commenced engagement with a Psychologist and has arranged appointments for dyadic therapy. Further, he has committed to rectify breaches of orders relating to his filing of material.
Having regard to those circumstances, I am not persuaded that indemnity costs should be ordered in this instance. However, were there to be further instances of non-compliance with Court orders and directions, it may well be that in the future the Court will take a different view.
The father does not take issue with the quantum of party/party costs sought on behalf of the mother. Having regard to the above factors, I am satisfied that the father should pay the mother’s costs on a party/party basis fixed in the sum of $5,300, such sum to be paid to the mother within 14 days.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 5 April 2023
0
3
0