Biondi & Koen
[2021] FamCA 230
•6 April 2021
FAMILY COURT OF AUSTRALIA
Biondi & Koen [2021] FamCA 230
File number(s): MLC 2782 of 2017 Judgment of: BENNETT J Date of judgment: 6 April 2021 Catchwords: FAMILY LAW – COSTS – Application of security for costs by mother on father’s application to re-open evidence in parenting/relocation proceedings after delivery of draft reasons for decision but before orders are entered – where there is no financial proceeding – where power to order costs is s 117 of the Family Law Act 1975.
FAMILY LAW – PRACTICE AND PROCEDURE – where draft reasons and draft order published to parties to permit counsel to draw to the Court’s attention any typographical corrections, errors and other obvious mistakes – Allowing a party to raise an omission or misunderstanding of a submission with the other side and then with the Court – where publication of reasons and order in draft form is not an opportunity to reargue the case or raise new issues.
FAMILY LAW – COSTS – Matters to be taken into account into account in parenting proceedings – where r.19.05 of the Family Law Rules 2004 may inform the exercise of the court’s discretion to make an order for security for costs – where security for costs is ordered in the sum of $10,000.
Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Cases cited: H&T (Judicial Change of Mind) [2018] EWHC 3692 (Fam)
Re L and B (Children) [2013] UKSC 8
Salvage & Fosse [2020] FamCAFC 144
Number of paragraphs: 49 Date of hearing: 6 April 2021 Place: Melbourne Counsel for the Applicant: In person Counsel for the Respondent: Ms Stoikovska SC Solicitor for the Respondent: Lander & Rogers Counsel for the Independent Children's Lawyer: Mr Eidelson Solicitor for the Independent Children's Lawyer: Southern Family Law ORDERS
MLC 2782 of 2017 BETWEEN: MS BIONDI
Applicant
AND: MR KOEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
6 APRIL 2021
THE COURT ORDERS THAT:
1.The husband’s Application in a Case filed 22 March 2021 and the mother’s Response thereto filed 31 March 2021 be mentioned on 22 April 2021 at 9.00 am (“the mention”). At the mention, the mother specify whether she proposes to rely on evidence of an alternative expert immunologist, the evidence of a yet to be appointed single expert immunologist and/or will cross-examine the father’s expert immunologist.
2.The father pay the sum of $10,000 into the Trust Account of his solicitors for payment out of the mother’s reasonable legal costs and disbursements associated with the father’s application to adduce further evidence in this parenting proceeding and matters relevant if further evidence is adduced.
3.There be leave to the father to make an oral application for injunctive relief in relation to the attendance of the child X born in 2016 at kindergarten.
4.Until further order, the mother and the father forthwith do all acts and things necessary to facilitate X’s attendance at kindergarten as enrolled, being R School in Suburb Q, including but not limited to:
(a)Immediately withdrawing the mother’s notification to the kindergarten that X will not attend;
(b)Ensuring that X is appropriately vaccinated and immunised in accordance with the requirements of the kindergarten and for X to have unrestricted access to activities.
5.There be leave to the parties to issue an unlimited number of subpoenas to produce documents in anticipation of the mention.
6.Until further order, the mother and the father attend changeover for time spent personally and any person accompanying the mother and the father remain in a motor vehicle or away from the changeover point.
7.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
8.My reasons for decision this day be transcribed and, when settled, placed on the Court file and a copy provided to the parties.
AND IT IS NOTED:
A.That the father consents to paragraph 6 of this Order without admitting the necessity therefore.
B.If the mother and / or the father seek the appointment of a single expert immunologist, they settle on the identity of that witness or a list of appropriately qualified persons who could be appointed, the cost and the availability of the experts and do so prior to the mention.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Biondi & Koen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J:
These proceedings concern X who is four years old, having been born in 2016. The background to the matter are set out in reasons, which I published to the parties on 12 February 2021 in exclusively parenting proceedings, including the mother’s application to relocate X’s residence to Brazil, which is the mother’s country of origin.
The hearing before me was conducted from 18 to 23 December 2019 and followed by the proposals in writing by all parties, which were filed and served in 2020. In March 2020, the COVID-19 pandemic hit Australia and disrupted life and litigation in Melbourne.
The family came before me on further interim applications, during the time in which my reasons for decision were reserved and the pandemic continued to prove to be a disrupting factor. The first set of interim applications which resulted in orders were before me on 27 March 2020 and 1 April 2020 and resulted in orders being made on 1 April 2020. This decision related to conditions under which X would spend time with the father during lockdown and an alteration to the duration of time spent.
Further interim proceedings before me on 10 December 2020 related to X’s attendance at kindergarten and choosing a kindergarten. As best I recall the situation, I did not make an order that X actually attend kindergarten in 2021, but I did order that the parties nominate the kindergarten. As best I recollect, the mother agreed to a certain kindergarten. X was then enrolled in that kindergarten and I understand has been attending that kindergarten until last Thursday, when the mother wrote to the kindergarten and she said she would not be back.
On 2 February 2021, my chambers wrote to the parties in the terms which are annexed to the father’s affidavit as annexure “K-1”. In brief summary, that letter notified the parties that prior to delivering my reasons for decision I wanted to hear from them as to whether any concessions were forthcoming in relation to the COVID-19 pandemic and the restrictions associated with the pandemic and the handling of the pandemic in both Australia and Brazil. Relevantly the correspondence contained the following paragraph and I quote:
If no agreements, and therefore no concessions, are forthcoming from all parties, please specify whether your client or you as a party seek to adduce fresh evidence on necessary preventative measures for X if she is entitled to travel to Brazil in the foreseeable future and during the pandemic.
The matter was then set down for mention before me on Monday 8 February 2020, which was the date that I would otherwise have delivered the decision. On 8 February 2020, the matter proceeded before me and as best I recollect the father was represented by his solicitor, Ms Sims. The mother appeared in person and Ms Hams appeared as Independent Children’s Lawyer. The concessions upon which the parties could agree were limited but, in my view, are set out accurately in the reasons which I delivered. There was no mention on 8 February 2021 of any application to adduce further evidence, notwithstanding that the correspondence sent on 2 February 2021 asked for consideration to be given about whether fresh evidence was necessary.
My reasons were delivered on 12 February 2021 with a set of draft orders. At paragraph 241 to 243 the reasons read as follows:
As observed earlier, I have not considered nor determined any issue of vaccination of the child and/or the mother against COVID-19.
For the avoidance of doubt, X’s departure is not conditional upon any level of travel alert issued by the Australian Government. There was no evidence that the mother required an exemption to travel out of Australia with X and there is the concession in relation to the requirements for entry to Brazil.
Given that the orders will need to be quite detailed, I ask the practitioners for the parties to be responsible for refining my first draft of the orders which is distributed with these reasons for decision.
On 24 February 2021, the matter was listed for mention before me to put some structure around any necessary redrafting of the final order. I ordered then that any corrections and amendments suggested by the mother and father be notified to each other and to the Court within 14 days. At this mention, Ms Stoikovska, Senior Counsel, appeared for the father. Mr Whitchurch appeared for the mother and Ms Hams appeared as the Independent Children’s Lawyer.
My recollection is that Ms Stoikovska indicated to the Court and to the other parties that she was instructed that her client was now going to make an application to adduce further evidence. Further my recollection is that Mr Whitchurch responded by saying if that is going to happen then his client will be seeking an order for costs or security for costs because she was now without legal aid funding. My recollection is that I asked Ms Stoikovska as to why no application had been made earlier. That is, between 2 February and 8 February to which the response was something along the lines of, the father and his lawyers did not think it necessary because they thought the father would likely succeed in opposing the relocation of X to Brazil. That is not Ms Stoikovska’s recollection and in any event she says that no matter what was said the reason that an application was not made between 2 and 8 February is dealt with by her client at paragraph 8 of his affidavit affirmed on 9 March 2021 in which he says, essentially, that he hoped that the situation in Brazil would become better so that there would be no need to adduce further evidence in relation to the pandemic and that the readiness of vaccinations would mean that there would be no need for vaccinations to be considered.
I have had an opportunity to review the audio recording of proceedings on 24 February 2021. The interchange between Ms Stoikovska and myself was as follows:
Her Honour: I wanted to know what progress had been made in relation to the draft orders, which I think would benefit form being honed by the parties to their particular needs because mine was pretty much a cut and paste of things that each party had wanted that seemed consistent with what I was ordering. The second thing is whether was there to be any judicial communication in relation to the enforcement of the order in Brazil. And third, I understood that consideration was being given to a further application by the father in relation to vaccination.
Ms Stoikovska: Thank you for restating that for me your Honour, I’m sorry I missed it earlier. If I may in relation to the last point, because obviously that effects our client, your Honour, it’s the father’s position that he not only wishes to put further material in relation to vaccination but the impact of Covid and the impact of Covid on any orders your Honour makes for the child’s relocation.
Her Honour: Well he had his opportunity to do that in relation to Covid generally, not vaccination, well before the judgment was delivered. And why didn’t he? Why wold he wait until now?
Ms Stoikovska: Well your Honour, as best as I am instructed at the moment, whilst he had some concerns about Covid, he had hoped that the position might in fact globally improve particularly as there was talk of vaccinations. I’m instructed he has observed in fact the contrary occurring and he became, and his concerns, if I can put it that way, particularly crystalised when your Honour made observations about Covid and Covid in Brazil generally, sought concessions from the parties in relation to that, and the mother was not prepared to concede any of the matters your Honour raised.
Her Honour: But that was the time to then make the application before there was a judgment.
Ms Stoikovska: Well your Honour, and therein lies the problem, that I’m instructed that at the time he genuinely believed that in light of the significant comments your Honour made about Covid and Brazil and so forth, that he did not believe that in those circumstances, wisely or not, he did not think that your Honour would then be inclined to make orders permitting relocation.
Her Honour: That was really unwise.
Ms Stoikovska: Well, I can’t argue with that your Honour. I’m not going to sit here and argue with that. But wise or not, that is what has occurred and also as I say, in light of the mother then not making any concessions, he has thought about, more practically, about the impact of any relocation order and the reality of him actually being able to exercise time in Brazil or the child being able to travel to Australia for time given the restrictions, that become more evident. For example, last weeks’ lock down and the change of line by the Government about what persons would be permitted into quarantine, the impact of quarantine and the practicality of those restrictions, none of which were matters put by any party before your Honour in your Honours consideration, as your Honour rightly noted when you raised with the parties the fact that matters were not before you and you rightly could not take them into account in your decision making.
Both parties by 9 March submitted suggestions for redrafting of the orders. The mother’s suggestions go far in excess of drafting indications in relation to the orders. They include alternative and further substantive relief including payment of child support by the father post-relocation. The provision of the reasons and orders in draft form was to permit counsel to draw to my attention any typographical corrections, mathematical errors and other obvious mistakes. If I have misunderstood their submission or omitted to consider an issue that was raised, a party could raise that omission with the other side and then with me in the context of all parties being heard. It is not an opportunity to reargue their case or raise any new issues for my consideration. For a discussion of this process, see of H&T (Judicial Change of Mind) [2018] EWHC 3692 (Fam), at [79-80] and the decision of the United Kingdom Supreme Court in Re L and B (Children) [2013] UKSC 8. In H & T, Justice Macdonald observed [79-80]:
As I have noted, in the original draft of this judgment circulated to the parties I concluded that the learned Judge's award had exceeded the wife's identified housing need and that therefore he was, in the circumstances of the case, wrong to make the lump sum order that he did. However, for the reasons I have given, having circulated the draft judgment with the standard rubric requiring counsel to point out typographical corrections and other obvious errors, I am satisfied that the draft judgment contained such an obvious error, namely that the figures on which the decision expressed in the draft was based omitted to include purchase costs which, whilst not appearing in the learned Judge's judgment, were, I am now satisfied from other sources, included in his calculations.
In this case, the consequence of that omission being pointed up is to change my conclusion on the outcome of this appeal as expressed in the draft judgment. Whilst I had not formally handed down judgment, and, accordingly, having regard to the decision of the Supreme court in L and B (Children) [2013] UKSC 8, there was nothing to prevent this change of mind following careful reconsideration (the Supreme Court having in Re L and B (Children) [2013] at [27] to [29] expressly rejected the 'exceptional circumstances' test set out in earlier decisions of the Court of Appeal), I am conscious that judicial tergiversation is, rightly, not encouraged. Not least in this case because the husband will have considered himself successful by reference to the draft, only for the court to reach the opposite conclusion in the judgment handed down. Against this however, as pointed out by Lady Hale in L and B (Children), a judge must have the courage and intellectual honesty to admit and correct an error or omission and, as Rimer LJ made clear in his dissenting judgment in Re LB (Children) [2012] EWCA Civ 984, in doing so is honouring his or her judicial oath. In the circumstances, whilst, as I can attest, it is an uncomfortable exercise for the judge, particularly where the error or omission acts to change the decision handed down in draft, and is disappointing for the litigant who believed they had been successful, a judge is duty bound to correct his or her omission or error. To do otherwise would not be just.
I have not dealt with the parties suggested redrafting. I understand that there is a concession that it would be most sensible to deal with that after I have dealt with the principal application by the father to adduce further evidence.
On 22 March 2021 the father filed his application in a case in which he seeks in summary:
Leave to adduce new evidence – including evidence in relation to Brazil’s response to the pandemic as compared to the response in Australia, vaccinations for adults and children against COVID-19 and the practical impact of COVID-19 in relation to the issue of relocation.
He further sought an order that the mother and or the child obtain such vaccination against COVID-19 as they may be eligible for in Australia as a condition precedent to any travel to Brazil and to provide the Court and the parties with evidence of the vaccinations within 48 hours of receiving the vaccinations. He sought that this application be heard by the Court prior to the making of final orders in the primary application of these proceedings. Indeed, no orders have been made by me in relation to the substantive proceedings and they will not be made until I have determined the application by the husband to adduce further evidence.
On 31 March 2021, the mother filed her response to an application in a case. I note that she now acts for herself. She sought various orders. Relevant to the father’s application she sought that it be dismissed and then she sought:
In the event of any further applications in accords from X’s father he funds the legal costs for me to engage a private family law solicitor and barrister (of my choice) to advise and represent me through to the end of this case with unlimited expenses including in the event of an appeal against the formalised final decision/orders.
RECORDED : NOT TRANSCRIBED
On 23 March 2021, my chambers had written to the practitioners for the father to the mother in person and to the Independent Children’s Lawyer notifying all parties that the father’s application to adduce further evidence (as described above) had been sent down for 6 April 2021 at 9 am estimated to take half a day. The correspondence continued:
At the last hearing of this matter, counsel for the mother said that the mother would be applying for security for costs. Obviously that application, if it is going to be made, should be determined at the same time as the father’s application to reopen his case. Can the mother, or her practitioner, please indicate if the mother is going to proceed with an application for costs or for security for costs. In anticipation of the hearing on 6 April 2021, could the mother also indicate, by return email and copied to all parties, if she requires the assistance of an interpreter so that the court can arrange one in timely manner.
The mother responded to that email on 29 March 2021, saying:
I am sorry for the delay in my response to your email below. However, I would like to let you know that no application for security costs was made as I do not have ANY funds from Victoria Legal Aid as per informed by Sue MacGregor on 22 February 2021. As a consequence I don’t have legal advice as to when and how I can make such an application as I am self-representing, I have no knowledge at all about the legal steps. Many thanks for asking me about the necessity of an interpreter. However, at the last hearing I had an interpreter (level 2), and I found difficulties with the translation. If it is possible to reallocate a level 3 interpreter, I will be so grateful, but if it will not be possible, I thank the offer, but I reckon I will be better on my own.
Today the mother appears in person, Ms Stoikovska appears on behalf of the father and Mr Eidelson appears on behalf of the Independent Children's Lawyer. There is no interpreter. An interpreter was requested by the Court at a level 3 accreditation but the agency which provides interpreting services to the Court was not able to fulfil the request at such a level but that a lower level would be available by phone. The mother sent correspondence to the Court that she would only accept a level 3 accredited interpreter as she felt she previously had issues with an interpreter of a lower level and so if a lower accreditation was only available that she would prefer not to have an interpreter. Therefore, the matter has, today, proceeded without the mother having the benefit of any interpreter.
Obviously, the pandemic is unprecedented for us in litigation of this nature. The father wants to adduce evidence in relation to the impact of the pandemic and the implications for adducing such evidence are far reaching. The father has provided the expert evidence upon which he relies. He did so by an affidavit from the expert, affirmed on 15 March 2021. Then on Friday 2 April 2021, which I would note is Good Friday as far as Easter is concerned and a public holiday, at 6.01 pm an email was sent which included updated evidence prepared by the same expert. That updated evidence goes to, I would estimate as it is unnumbered, some 60 or so pages, if not more.
Counsel for the Independent Children's Lawyer, Mr Eidlenson, has indicated that the Independent Children's Lawyer supports the adducing of further evidence, but says that it is absolutely essential, from the perspective of X, that each of the parents be able to run their case in a principled and capable manner and that he does not perceive that the mother, as a litigant in person with limited English skills, has any realistic prospect of being able to acquit herself sufficiently in the cross-examination of the expert evidence upon which the father relies. Furthermore, that the mother herself is entitled to consider obtaining alternative expert evidence. I am leaving to one side, at the moment, any rules in relation to single expert witnesses, which may become relevant subsequently.
It seems to me that it is important that I deal with the mother’s costs application today so that she may argue any issue of the scope of the re-opening of evidence and associated matters with the benefit of legal advice. Accordingly, I have permitted the mother to, in effect, make an oral application for security for costs or costs associated with the response to the father’s application to adduce further evidence and to do so today.
Ms Stoikovska did not object to me reversing the order in which submissions were received.
Mr Eidelson suggested a figure of $10,000 might be a reasonable amount for the mother to be awarded in the event that she was to recover any security for costs. He also, by the way, says that the mother should recover that money so that she can be represented. As it happens, the sum of $10,000 was what I contemplated prior to Mr Eidleson’s submissions. Ms Stoikovska has indicated to the Court that her instructions are to oppose vigorously any order being made for her client to pay the mother’s costs but that if, over her opposition, such an order is made, she would not contest the quantum of an order for $10,000.
It is an application for litigation funding in a parenting matter. The Court’s power to make an order for litigation funding in a parenting matter must derive, primarily, from s 117 of the Family Law Act 1975 (Cth) (“the Act”). Arguably, it may also derive from the parenting provisions of the Act but I do not rest my decision in this case on the parenting power.
Turning to s 117 of the Act, the primary position is that each party should bear their own costs, unless I am satisfied that there are circumstances justifying a costs order being made.
Ms Stoikovska’s submissions were, in summary, that it would be most unusual if a costs order were made at the conclusion of parenting and relocation proceedings, let alone as an order for security for costs before such costs have been incurred. Her submission was that in parenting cases, save those that are brought on a frivolous or vexatious basis, the parties would bear their own costs. I do not accept that submission. The primary position is that each party bear his or her own costs save where there are circumstances which justify a costs order or an order for security costs being made in which case the order must be “just”.
Ms Stoikovska submitted that there was no direct evidence that the mother had applied to Victoria Legal Aid, or that she was without eligibility to obtain assistance from Victoria Legal Aid to further conduct her case. In response, the mother took me to annexure “B-12”, to her affidavit of 31 March 2021. That is a letter from MacGregor Barristers and Solicitors who have been the legal representatives for the mother in these proceedings. It is dated 22 February 2021, and omitting formal and irrelevant parts states as follows:
We confirm that you have completely used you allocation of funding available from Victoria Legal Aid. We have made a number of applications, on your behalf, for “overcap funding”, which have also been expended. In these circumstances, we believe that it is affective impossible for you to obtain further funding from Victoria Legal Aid. We are therefore put in the extremely difficult situation that we cannot perform further work on your behalf about payment. To this end, we enclose here with costs letter. We are obliged to provide this information to you. We understand your financial situation, but there is little more we can do. As you are aware, we have already performed a great deal of work on your behalf, much of it in excess of the grant of legal assistance. We simply cannot continue to act for you, without funding. We realise that you are not able to pay yourself, but we are uncertain as to whether you have an ability to raise funds from elsewhere. If so this is the time for you to be making those inquiries. We are uncertain as to whether Mr Koen will pursue his further anticipated application, as outlined in the e-mail forwarded to you. We, however, have no reason to believe that he would not pursue such an application. We can make an application to the Court that Mr Koen pay your costs associated with any further applications, but that, in itself, would also cost money.
I am satisfied that the mother has exhausted her access to assistance from Victoria Legal Aid. Apart from the correspondence from the mother’s solicitor to the mother, it is my recollection, although I cannot be precise as to when it occurred, that her previous solicitor, Ms McGregor indicated that the mother’s cap for assistance from Victoria Legal Aid had been well and truly reached.
It was next argued by Ms Stoikovska that, in effect, the mother should have recourse to her family for loans or financial assistance as the father has apparently done. The parties have been required to update their financial situation, at least, by narrative from the time that the last financial statement was filed with the Court. The father has referred to paying for legal costs from the sale of property and, by implication, from loans from his parents and his sister. However, the mother’s family are under no obligation to pay for her legal costs. I do not consider the mother’s ability to ask her parents or family for money to be a relevant consideration.
The next, and probably most forceful submission put by Ms Stoikovska was that it is not only the father who bears responsibility to put further up-to-date evidence before the Court, and therefore it is not only the father who should be responsible for paying for that evidence to be put before the Court. The Independent Children's Lawyer has conceded that evidence of the nature that the father wants to put before the Court is relevant to these proceedings and will be admitted. The mother takes issue with that, and says that the evidence was available prior to the delivery of my reasons and there is every indication that she would want to oppose the admission of further evidence. Whether the mother can realistically be successful in taking such a course, given the paramount consideration in proceedings of this nature is the best interests of the child and that there is a duty of the parties of full disclosure and an obligation of the Court to take into account all relevant evidence, up until the time that orders are made is something which I doubt. However, obviously, it is open to the mother to argue that the evidence ought not to be admitted, and I do accept that she needs some assistance to deal with whatever evidence may be admitted.
The unfortunate timing of the husband’s application is that, by correspondence sent from the Court on 2 February 2021, the practitioners for the father were put on notice that consideration should be given to any application to adduce evidence, when the matter was returnable on 8 February 2021, no application was made, semaphored or the subject of notice. It was not until after the reasons were delivered and the mother was well and truly unrepresented that the father indicated he would be making an application to adduce further evidence. In all of the circumstances of this case I’m satisfied that an order for costs is justified at this juncture.
What I next turn to is what order should be made. In determining what order should be made, I am directed to take into account the matters dealt with in section 117(2A) of the Act and I am also mindful of the provisions of r 19.05 of the Family Law Rules 2004 (Cth) in relation to matters which may inform the exercise of the costs discretion to make an order for security for costs.
RECORDED : NOT TRANSCRIBED
I am directed to take into account the matters set out in section 117(2A). The first is the financial circumstances of each of the parties to the proceedings. The father has his own business from which he derives an income. He is self-employed. He lives in a home which he partially owns. His family members own the balance of the property. He has apparently paid legal costs in these proceedings in excess of $400,000. Those costs predate even the birth of X. In this last round of proceedings in relation to adducing further evidence, he has incurred costs of $31,000 which have been paid. That does not include work-in-progress of some $5000 or counsel’s fees for today which will be in the vicinity of $9000, nor, one would assume, the costs of instructing counsel for today.
Whereas the father portrays his financial situation as being modest, the amount that he has been prepared to devote to these proceedings previously, and on an ongoing basis, is not modest. There is no criticism whatsoever of Ms Stoikovska, but the fact remains that her fees run at some $8800 per day and that the father could obtain junior counsel at a lesser rate, but he chooses not to. That is a matter for him, but having regard to his financial circumstances, I have a regard to the fact that he clearly gives a lot of priority to his own legal costs.
The mother’s financial position is that she is solely dependent upon moneys which are paid by the father and certain limited social security payments. Of course I take into account that the father is largely supporting the mother’s household, including maintenance of $430 and child support of $145 per week..
RECORDED : NOT TRANSCRIBED
There are other expenses which have been paid by the father. He says he pays on a voluntary basis for a variety of things, including new tyres to the mother’s car. I am satisfied that the father is making a contribution to the mother’s household. I am also satisfied that mother has extremely limited resources and she has confirmed that in a narrative correspondence to the Court. This factor is supportive of an order being made for costs although, obviously, not determinative.
I take into account that the mother is not in receipt of assistance from Victoria Legal Aid at this point, and I accept that it is not realistic to assume that she will be in the future.
I take into account the conduct of the parties to the proceedings in relation to the proceedings, and it is this respect that I take into account the fact that the father could have made this application to adduce further evidence at a time when the mother was represented. That is between 2 and 8 February 2021. Otherwise, I would be satisfied that the father has acted fairly diligently and promptly in the proceedings. It is just that if he had done so sooner, the mother would have taken advantage of the representation which she had on 8 February 2021 to argue this issue, rather than being faced with the prospect of having to argue it herself.
The next three matters to be taken into account, under section 117(2A) of the Act, are not relevant to the proceedings. That is, whether the proceedings were necessitated by the failure of a party to comply with a previous order of the Court, whether a party has been wholly unsuccessful and whether an offer to settle the matter was made.
I am, pursuant to section 117(2A)(g), able to take into account “such as other matters as the Court considers relevant.” In this respect I take into account that the case which the mother has to meet is a case of some complexity. I accept the submissions of the Independent Children's Lawyer in this regard. At the very least, if the evidence is admitted the mother will have to cross-examine the father’s expert. She may also be advised to obtain expert evidence of her own and then deal with the cross-examination of that witness by, or on behalf of, the father. I will leave to one side the prospect of obtaining single expert witness in these proceedings.
As was observed by Ryan and Aldridge JJ in Salvage & Fosse [2020] FamCAFC 144 at [14-15]:
The critical question therefore is whether the applicant has “any real prospects of obtaining justice unless the order sought is made” (Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consideration of the strength of the applicant’s case and the effect of the order upon the respondent.
It would not be just, for example, for the respondent to have to pay the legal expenses of the applicant, where the case to be taken was weak, fanciful or misguided or where the effect on the respondent of such an order would work an injustice. We do not consider it helpful, however, for there to be a need to identify the applicant’s case as strong, persuasive or such like to justify an order. That invites a descent into semantics and an artificial characterisation of the strength of the proposed proceedings. The consideration should be whether the case to be raised by the applicant is sufficient, in all of the circumstances, as to its nature and prospects, to justify an interim order for costs. This conclusion accords with Zschokke at 83,217, where the Full Court said:
… We agree that, as was submitted by [c]ounsel for the wife, the requirement of justice (which was expressly drawn to attention by the Full Court in Hogan and also implied by Brennan J in Breen) must remain a “basic” condition in the making of an order of the type in question under s 117(2).
(See also Strahan at [124]).
I am satisfied that the father is the only parent capable of paying for legal representation for the mother. I am satisfied that s 117 of the Act empowers the Court to make such order as to costs and security for costs as is just and that the s 117 power is of sufficient width to support an order that the father pay a specific sum on account of the mother’s costs or, for that matter, a sum arrived at by application of a formula.
I am satisfied that the mother is genuinely without funds to pay her legal costs and that her application for pre-payment of her costs is genuine. Her application is not made for an ulterior purpose and not, for instance, made to de-incentivise the father from proceeding. I cannot point to the fund from which the father will satisfy any order for costs, but I am comfortably satisfied that he will find the means by which to continue to fund his own legal costs at a high rate.
I am satisfied that the mother has a case to argue. She can oppose leave to re-open but the real substance to her response to the father’s new evidence is likely to be in considering how further evidence is to be limited to specific matters so as to avoid a re-run of the relocation case.
In my view the considerations of the relevant matters in s 117(2) fall in favour of the mother being successful in an application for the father to pay some part of her costs of these proceedings or, at least, a certain amount on account of these proceedings and I will make an order to that effect.
RECORDED : NOT TRANSCRIBED
Given our earlier discussions, I have asked each party again whether they oppose an order being made for $10,000. They do not. I am satisfied that an order for $10,000 will not be oppressive to the father and nor will it stifle the case.
I am making this order in somewhat of a vacuum because the mother has made no submission in relation to quantum notwithstanding that an application for security for costs has been within her contemplation, or was at least within the contemplation of Mr Whitchurch on 24 February 2021 when he appeared on her behalf. There was a symmetry between the estimate or the Independent Children's Lawyer and what I was considering an appropriate sum. I have settled on $10,000 which I am confident is not being generous to the mother. Indeed, the funds paid by the father for the mother’s costs will have to be applied prudently because there is no guarantee of getting more.
There must be certain conditions to the husband paying over funds for the mother’s costs. The mother does not get those monies directly. The funds must be expended as reasonable expenses in the prosecution of her case and in relation to adducing further evidence only. As such, the mother obviously does not have practitioners now. It seems, to me, reasonable that the father be required to deposit the amount of $10,000 into the trust account of his own solicitors to be paid out, subject to further order of the Court, for the mother’s reasonable legal expenses and that should be done within seven days.
On the adjourned date, 22 April 2021, I will consider the father’s application to re-open his case on the basis that leave to him would be leave to all parties. I will also consider limiting the subject matter of the further evidence. There is a temptation to prolong these proceedings to capture all relevant developments against which X’s best interests can be gauged. However, arriving at a final determination at first instance is imperative because it is only after final orders have been entered that the parties can consider his/her options going forward including his or her prospects on an appeal. I leave my consideration of the parties’ suggestions of changes to my orders until after I have dealt with the principal application by the father to adduce further evidence.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 22 April 2021
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