Bolinger v Ivy

[2008] FamCA 274

FAMILY COURT OF AUSTRALIA

BOLINGER & IVY [2008] FamCA 274

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Bolinger

RESPONDENT: Mr Ivy

FILE NUMBER: MLF 2145 of 2006

DATE DELIVERED: 23 April 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Carter J

HEARING DATE: By written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamilton

SOLICITOR FOR THE APPLICANT: Berryman Partners

COUNSEL FOR THE RESPONDENT: Mr Mawson

SOLICITOR FOR THE RESPONDENT: Septimus Jones & Lee

Orders

Upon reading the written submissions of the husband and the wife

IT IS ORDERED

1. That within 45 days of this day the husband pay the wife’s costs of and incidental to the parties’ respective applications for parenting orders as and from 22 August 2007, including costs relating to the parties’ respective written submissions as to costs, such costs to be on a party/party basis, as agreed, or failing agreement, as assessed pursuant to the Family Law Rules 2004.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 2145 of 2006

MS BOLINGER

Applicant

and

MR IVY

Respondent

Reserved Judgment

(Costs)

Delivered in Chambers

1. Ms Bolinger (“the wife”) seeks an order for costs in the sum of $30,165.86 against Mr Ivy (“the husband”).  The husband resists the application.

Background

1. The husband was born in September 1975 and the wife was born in March 1976.  They married in April 2003, having cohabited for some time beforehand.  They have one child, a daughter who was born in August 2005.  Final separation took place on 7 April  2006 when the wife and the child moved to live in New South Wales.  The wife was originally from New South Wales and she moved back to live at her parents’ home following the separation. 

2. At the time of the separation the child was about seven and a half months of age.  She has continued to live in New South Wales with her mother at all times following separation, save for occasions when she spent time with the husband.

3. The wife has repartnered but, so far as I know, the husband has not.

4. Following separation, the wife brought the child to Melbourne to see the husband in April, May, June, July and August 2006.  This was at the wife’s own expense.

5. On 11 July 2006 the husband filed applications in the Melbourne Registry seeking interim and final orders relating to children and property matters.  Amongst other things he sought that the child return to Melbourne and that the husband and the wife have equal shared time with her on a rotating weekly basis.  That application was never amended.

6. On 30 August 2006 the wife filed responses seeking interim and final orders relating to both children and property matters.  Amongst other things the wife sought that the child live with her in New South Wales.  She proposed on an interim basis, that she would bring the child to Melbourne one weekend each month to enable her to spend time with the husband during day time periods only and further that the husband should travel to New South Wales on one weekend per month to spend time with the child during day time periods only. 

7. On 5 December 2006 a Case Assessment Conference took place.  The parties were not able to resolve their differences completely and the matter was adjourned to be heard by the Senior Registrar on 21 November 2006.  The husband and the wife were however able to agree that in the intervening period the husband would spend time with the child in accordance with the proposals made by the wife.  It was also agreed that a Family Report would be prepared for the adjourned hearing.  That report was prepared by Dr J.  It was dated 17 October 2006 and was annexed to an affidavit sworn or affirmed by Dr J on 3 November 2006 and filed 10 November 2006.  Amongst other things, Dr J recommended that the wife should return with the child to live in Melbourne and that the child should spend time with the husband each week from 3:00pm Tuesday until 10:00am Wednesday and on alternate weekends from 10:00am Saturday until 5:00pm Sunday.

8. On 21 November 2006 the matter came before the Senior Registrar.  Relevantly, and not by consent, an order was made that the child live with the wife in New South Wales save for periods when she was to spend time with the husband.  In that latter regard it was ordered that the husband should spend time with the child as agreed between her parents and failing agreement, he would spend time with her on three weekends out of four.  The intention of the order was explained in a notation which was that the husband was to spend time with the child two weekends each month in Melbourne and one weekend each month in New South Wales.  The wife was to be responsible for the costs of travel to Melbourne and the husband was to be responsible for the costs of travel to and from New South Wales.

9. A Conciliation Conference took place on 29 November 2006 and the parties were able to resolve financial matters. 

10. In an amended response filed by way of Form 2A on 3 November 2006, the wife had sought that the hearing of the children’s proceedings be expedited. That application was ultimately granted and a Trial Notice Directions Hearing took place on 28 February 2007. The proceedings were required to be conducted pursuant to Div 12A of Pt VII of the Family Law Act 1975 (Cth) (“the Act”).  In other words, the trial was to be conducted as a Less Adversarial Trial (“LAT”).

11. The trial was fixed for hearing before me and the first day of that trial was 7 June 2007.  The Family Consultant who was assigned to this case was Ms T.  One of the orders I made on the first day of the LAT required a Family Report to be prepared to address the following issues:

    ·Relocation

    ·Difficulties in communication between the parents

    ·Frequency of travel

    ·Frequency of time to be spent.

12. It was ordered that the Report be released by 27 July 2007, and the further hearing was adjourned to 15 August 2007. 

13. Ms T interviewed the husband and the wife and duly prepared a Report which was released to the parties and before the Court when the matter resumed on 15 August 2007.  It is convenient to note here that Ms T did not support Dr J’s recommendation and in particular it was, at the very least, implicit in her Report that it was in the child’s best interests to continue to reside with her mother in New South Wales.

14. It is also convenient to note here that neither Dr J nor Ms T recommended an equal shared care arrangement in their respective reports.

15. The parties were not able to resolve their differences following the release of the Report and on the adjourned hearing date I further adjourned the proceedings to myself in Chambers for the purpose of making trial orders and directions.  Those trial orders and directions were made on 17 August 2007. 

16. One of the orders which I made was that the final stage of the proceedings was to commence on 5 November 2007 with an anticipated hearing time of four days.  I was aware that the following day, 6 November 2007, was a public holiday in Melbourne and that this would be likely to inconvenience the parties, but particularly the wife.  However, this was the earliest date that the matter could be accommodated having regard to other commitments. 

17. There was a notation to the order that Ms T, the Family Consultant, was available to give evidence and attend for cross-examination on 5, 8 and/or 9 November 2007.  The orders provided that any request for Ms T to be available for cross-examination must be made by either party in writing to the Manager, Child Dispute Services, within 21 days.

18. Another of the orders granted the husband leave to rely on the affidavit of Dr J filed 20 November 2006 and went on to require the wife to give notice by 26 October 2007 if she sought to cross-examine Dr J.  In that event the husband was to be solely responsible for Dr J’s costs of and incidental to his attendance.  The wife filed an Amended Response on 17 September 2007.  The orders sought were based on the recommendations of Ms T given in her Report dated 23 July 2007.  The husband did not file any Reply to that.

19. Both parties filed affidavits in preparation for the last stage of the LAT.  As well as his own affidavit and Financial Statement the husband relied on evidence given by affidavit by three other witnesses.  All those documents were filed on 19 October 2007.  It is clear from the husband’s trial affidavit that he was pursuing his application for the child to live in Melbourne.

20. For her part in preparation for the final stage of the proceedings the wife swore or affirmed two affidavits.  One concentrated on relocation issues and the other concentrated on the history of the parties’ relationship and issues relating to “lives with and spends time”.  It was said that this was to make it easier to provide information than if a single long affidavit had been filed.  The affidavits relating to relocation issues also incorporated financial information.  Affidavits of three other witnesses were also filed in support of the wife’s case.  All affidavits were filed on 22 October 2007.

21. It is convenient to note here that I was subsequently made aware that the wife notified the husband’s solicitor on 4 September 2007 that it was sought to cross-examine Dr J;  and similar notification was given on the same date in respect of Ms T. 

22. The last stage of the trial commenced on the appointed day, 5 November 2007.  Mr Mawson SC appeared on behalf of the husband and Mr Hamilton of counsel appeared on behalf of the wife.

23. At the outset I was asked to stand the matter down and I acceded to that request.

24. When the matter resumed at about 11:00am Mr Mawson told me that the husband had reached the difficult decision not to pursue the relocation issue.  It was also made clear on behalf of the husband that he no longer sought a shared care arrangement and I was provided with a Minute of Proposed Orders which he sought.  As Mr Mawson explained his proposal was based on the regime which was in force at the time, but with some differences.  For her part, Mr Hamilton explained that the wife’s proposals largely followed Ms T’s Report.

25. There were discussions between counsel and also with me.  It was eventually agreed that Dr J should give evidence and be cross-examined about his Report dated 17 October 2006, upon which the husband relied, and that Ms T should be present to hear that evidence and cross-examination.  It was also agreed that Ms T should give evidence and be cross-examined about her Report dated 23 July 2007 upon which the wife had largely relied in formulating her proposal.

26. Additionally an assurance was given on behalf of the husband that if Ms T maintained her position and recommendation notwithstanding cross-examination and evidence from Dr J and her own cross-examination, the husband would accept orders in accordance with Ms T’s recommendations.

27. It was also agreed that it was appropriate in all the circumstances for the expert evidence to be given prior to the husband and the wife giving any evidence.

28. I was informed by Mr Mawson that Dr J would not be available until Wednesday, 7 November 2007.  It will be recalled that the notation to the trial orders made 17 August 2007 disclosed that Ms T would not be available to attend to give evidence and be cross-examined on that date.  Accordingly, the matter was adjourned until Thursday, 8 November 2007.

29. The matter proceeded as had been anticipated on Thursday, 8 November 2007.  Dr J of course had not seen the parties or the child for over a year.  That was a very significant period of time, particularly noting that the child was only a little over two years of age at the time of the final hearing.

30. Ms T maintained her recommendations.  She was not shaken during cross-examination nor moved by the experience of hearing Dr J’s evidence to alter her conclusions.

31. The expert evidence and cross-examination took most of the morning and time was thereafter given to both parties and counsel for further discussion.

32. Notwithstanding the assurances which had been given on behalf of the husband to which I have referred in par 27, the husband subsequently resiled from that position at around 3:20pm.  The matter was therefore stood over to the next day.

33. When the matter resumed on the following day (9 November 2007) Mr Mawson told me that the husband had reverted to his former position and had accepted the recommendation contained in Ms T’s Report.

34. Thereafter the parties, with their respective legal practitioners, negotiated.  Court time was required but eventually at about 3:30pm, as I recollect, orders were made.

35. The wife had foreshadowed through counsel, an application for costs and I made provision for such an application in the orders made on 9 November 2007 in the following terms:

    “[30]That any application for costs be made within 14 days of this day by filing submissions in respect of such application.

    [31]That at the time such submissions are filed the applicant is to forward a copy to my Associate by email.

    [32]Any submissions in response are to be filed within a further 14 days after service of such submissions.

    … ”

36. The wife’s submissions are dated 20 November 2007.  There are annexures to the submissions.  Annexure “A1” and “A2” are copies of the signed Costs Agreement and Disclosure document between the wife and her solicitor;  Annexure “B” is the Memorandum of Fees issued on a Solicitor/Client basis in relation to costs incurred between 1 August 2007 and 19 November 2007;  Annexure “C” is the copy of the wife’s personal Income Tax Return for the 2006/2007 financial year;  and Annexure “D1” to “D7” are copies of correspondence between the parties’ respective solicitors incorporating Offers of Settlement.

37. The cover sheet of the submissions includes a Notation that a copy of the submissions and all annexures were served upon the husband’s solicitors by email on 21 November 2007.

38. The husband’s submissions in response are dated 4 December 2007 and as I understand it they were forwarded by email to the wife’s solicitors on that same day.

39. On 29 February 2008 the wife’s solicitors corresponded with my Associate in respect of certain matters which had occurred and which it was suggested gave rise to the need to make certain changes to the wife’s submissions.  A copy of the correspondence was sent to the wife’s solicitors and at my direction my Associate sought information from the husband’s solicitors as to whether objection was taken to these matters being taken into account.

40. On 4 March 2008 the husband’s solicitors communicated with my Associate and, amongst other things, contended that circumstances did not require the additional matters to be taken into account.  A copy of this communication was sent to the wife’s solicitors at the same time.

41. On 6 March 2008 the wife’s solicitors responded to the communication from the husband’s solicitors providing further information.  Subsequently, at my direction, my Associate informed them that I did not propose to take any additional matters into account given the differing views of the solicitors.  It was suggested that the matter would need to be relisted if it was to be taken any further.  That has not taken place and accordingly I rely only on the written submissions which have been filed and do not take any additional or subsequent changes of circumstances into account.

42. The submissions have been considered in Chambers.

Relevant Legal Principles

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) is the relevant statutory provision. It is a general rule under s 117(1) that each party shall bear his or her own costs. However, pursuant to sub-s (2) the Court may make such order as to costs as it considers just if it is of the opinion that there are circumstances to justify doing so. In considering what order (if any) should be made the Court is required (amongst other things) to have regard to the matters referred to in s 117(2A). They are:

   “Section 117(2A):  [Matters to be taken into account]

   By sec 117(2A), in considering what order if any should be made under sec 117(2), the court is required to 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 their conduct 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, in accordance with sec 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer (as to which, see ¶61-190); and

   (g)  such other matters as the court considers relevant.”

2. The Full Court of the High Court of Australia explained in Penfold (1980) FLC ¶ 90-800 that the general rule expressed by s 117(1) is not paramount to s 117(2) and must yield whenever a Judge finds in a particular case that there are circumstances justifying the making of an order for costs. Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Apart from that, however, there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. The members of the High Court did not agree with the suggestion made by the Full Court of this Court in the judgment under appeal that an order could only be made under s 117(2) in “a clear case”.

3. In I and I (No. 2) (1995) FLC ¶ 92-625 the Full Court held that there was no rule to the effect that “special circumstances” must be shown to justify a costs order in children’s matters.

4. In Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania) ) v Fish (2005) 33 FamLR 123 the Full Court gave a timely reminder that nowhere in s 117(2A) or elsewhere in s 117 is there any prescription that more than one factor must be present before an order for costs is made, nor any indication as to the comparative weight of the factors set out in sub-s (2A). It is therefore the case that there is nothing to prevent any factor being the sole foundation for an order for costs.

5. The submissions remain on the Court file and as such form part of the Court record.  I will only refer to them where necessary, however, both parties should not conclude that because I have not referred to each an every one of the submissions which have been made, it followed that I have disregarded them.  This is simply not the case and on the contrary I have found the submissions most helpful.

Orders Sought

1. As seen, the wife seeks that the husband contribute to her costs the sum of $30,165.86.  The costs sought are on a Party/Party basis and it has been conceded that there is no justification for an award of indemnity costs.  The amount of costs has been calculated as being two-thirds of the wife’s Solicitor/Client costs incurred in the period between 1 August 2007 and 19 November 2007.  Professional fees of the wife’s solicitors (including GST) have been calculated at $25,256.  Disbursements (excluding GST) total $18,448.40 and GST on disbursements totals $1,544.84.  The total amount due is $45,249.24.  The disbursements claimed include flights for the wife’s solicitor and counsel to Melbourne for the hearing;  accommodation charges for the wife’s solicitor and counsel in Melbourne, a total of five nights;  counsel’s fees for the hearing (five days including Melbourne Cup Day fee for time lost);  counsel’s fees for preparation of the written submissions in relation to the Costs application and flights for witnesses from New South Wales and from the Middle East.

1. It is convenient to note here that the wife’s mother was a witness in the case.  The wife’s parents have largely lived in the Middle East because of the wife’s father’s job, however, they still maintain their home in New South Wales.  The wife’s other witnesses all live in New South Wales. 

2. For his part the husband’s primary position was that there should be no orders for costs, however, it was also submitted on his behalf that if it was determined that he should make some contribution to the wife’s costs then those costs should be “taxed” in the absence of agreement as to quantum or assessment. 

Section 117(2A) Factors

1. The wife’s submissions place reliance on s 11(2A)(a), (c), (d), (e) and (f).

2. The husband’s submissions in response deal with the factors set out in s 117(2A)(a), (c), (e), (f), and (g).

3. I agree that these are the relevant subparagraphs.

Section 117(2A)(a) – Financial Circumstances

1. Information has been provided in the wife’s submissions which is supported by evidence or the annexures as to her financial situation.  It was anticipated that the overall financial circumstances of the husband and the wife were not significantly different.  It was also submitted that the husband had the capacity to meet an order for costs and the husband has not denied this.

2. Reliance was sought to be placed on the fact that the wife paid the child’s entire costs of airfares for travelling to and from Melbourne for two weekends in each four-week period from the date of her second birthday.  It is also obviously the case that the wife had to pay for her own airfare, as did the husband.  This was pursuant to the interim orders which were made by the Senior Registrar and whilst it must be the case that the wife incurred expense additional to that incurred by the husband, I attach little, if any, weight to this matter. 

3. The husband and the wife are both in paid employment.  As seen, the wife has repartnered and has purchased a property in New South Wales.  The husband for his part has also purchased a home in Melbourne in which he lives.

4. The wife has established her own business in New South Wales and her partner is also involved in that business.

5. It was conceded on behalf of the husband that he earnt more than the wife but it was further submitted that there was not such a disparity between their respective financial circumstances as would justify the making of an order for costs.

6. I agree with that submission.

Section 117(2A)(c) - Conduct

1. The wife relies on the fact that it was not until the first day of the last part of the trial (5 November 2007) that the husband withdrew his application for relocation.  It was contended on behalf of the wife that this was so notwithstanding written indications to the wife on 27 October 2007 and 2 November 2007 that he would maintain his application in the event that the trial continued.  The husband’s written submissions did not dispute this.

2. It is the case that the husband maintained his position notwithstanding the strong recommendations in Ms T’s Report which was released in July 2007.  I accept the submission made on behalf of the wife and it is self-evident, that preparations for the final hearing had been significantly based upon the relocation and shared care issues which the husband had raised in his application and affidavit material and that the length of those affidavits and the number of witnesses being called by each party were primarily related to those two specific issues.

3. This case was allocated four days of Court time for the last stage of the trial and I accept the submission that if the issues had been limited to a question of the time which the child was to spend with her father, the matter would probably not have been listed for more than two days. 

4. It is also the case that the husband resiled from the assurance given on his behalf on 5 November 2007 which was to the effect that if Ms T maintained her position in respect of her recommendations after cross-examination then the husband would consent to orders in accordance with those recommendations.  Accordingly, I accept the wife’s submission that most of the afternoon of 8 November 2007 was wasted because the husband resiled from his earlier position.

5. I do not place any weight on the fact that the matter could not proceed until Thursday, 8 November 2007 because of the commitments of the expert witnesses.  The decision which was made in relation to the evidence which was to be given and in particular that Ms T was to be present when Dr J gave his evidence and was cross-examined was not made until the first day of the last stage of these proceedings, 5 November 2007.  Neither party could have foreseen that this would happen.  It had not been averted to earlier and in those circumstances it may well have been Dr J, who was available on Wednesday, 7 November would have given his evidence then as part of the husband’s case and Ms T would have given her evidence on 8 or 9 November as part of the wife’s case. 

6. It is, of course, a pity that a whole day was lost as a result of all of this, however, in my view, it should not be attributed as being the “fault” of either party.

7. Both parties raise delay, albeit in a different context.  It was suggested on behalf of the wife that a significant factor in the filing of the husband’s application which did not take place until more than three months after the wife had moved to New South Wales, was the financial aspect of the injunctive orders sought by the husband.  I am not altogether certain why this formed part of the wife’s submissions unless it is a suggestion that the husband’s bona fides are questionable.  If that is the case, I must record that there is no evidence upon which any such finding could be made;  the submission is mere speculation.  I therefore make it clear that in my determination of the claim for costs made by the wife, I do not make any findings or draw any adverse inferences with respect to the husband’s bona fides.

8. In the husband’s submissions it was contended that the “significant delay in the final resolution of these proceedings is not in any way due to the failure of the husband to prosecute these proceedings.  The effluxion of time which resulted in the wife and the child being settled in New South Wales was a significant factor in the husband’s decision to abandon his ‘relocation application’ ”.

9. The Court cannot know what was in the husband’s mind or what motivated him to compromise these proceedings.  Save that there was a delay of more than three months before the husband filed his initiating application (for whatever reason), I would agree that it cannot be said that the husband failed to prosecute the proceedings.  That said, however, I do note that it was the wife who applied for expedition of the hearing.

10. I must also record that the hearing was completed not quite 16 months after the husband had filed his initiating application.  I appreciate that this is a significant period of time, particularly given the child’s tender years.  However, it is not to my mind inordinate and, so far as I am aware, the husband did not take any action to have the matter determined with any expedition.

Section 117(2A)(e) – Whether Any Party has been Wholly Unsuccessful in the Proceedings

1. Neither party was wholly successful or wholly unsuccessful in these proceedings.

2. The husband was wholly unsuccessful in the issue relating to relocation, given that he withdrew his application in that regard.  The differences between the parties’ proposals in relation to the other parenting issues related to the time the husband was to spend with the child and, significantly, the ways and means in which the orders should be implemented.

3. It is the case that the orders sought by the wife were substantially in accordance with Ms T’s recommendations which the wife adopted in her Amended Response and the orders which were eventually made were by the Court (setting aside some of the details relating to implementation) were much closer to the orders sought by the wife than those sought by the husband, even after his position changed on the first day of the final stanza of the LAT.

4. It was submitted on behalf of the husband that:

   “Relocation cases pose difficult questions for the Court and for the parties involved.  The only ‘right’ the husband has is to bring an application before the Court and to seek Orders which will ensure his ongoing meaningful involvement in [the child’s] life and Orders which will promote a meaningful relationship.”

5. That submission is accurate, however, with respect to counsel for the husband, that proposition is not supported by this subsection.  The legislation speaks in terms of lack of success.

Section 117(2A)(f) – Offers in Writing

1. The wife’s submissions contain as Annexures “D1” to “D7”, copies of certain correspondence between the parties’ respective solicitors.  Annexure “D1” is, strictly speaking, not an offer of settlement.  It is a letter dated 15 August 2007 from the wife’s solicitors to the husband’s solicitors suggesting a variation to the existing regime pending final hearing.  The letter does however, enclose a copy of the final orders which the wife proposed to seek and invited the husband’s response.

2. Annexure “D2” is a reply from the husband’s solicitors dated 21 August 2007.  It is clear from the letter that the husband did not agree to any variation of the interim orders pending the final hearing of the matter.  There were other matters raised which I need not record here, save that the letter closed by advising that instructions from the husband were being obtained in relation to an overall proposal, about which the wife’s solicitors would be notified in due course.

3. The next letter contained in the annexures is Annexure “D3”.  This was a letter from the husband’s solicitors to the wife’s solicitors dated 17 October 2007.  It contains an offer of settlement.  Self-evidently this letter was sent about two months after the husband’s solicitors had been notified of the precise orders which the wife would seek at the final hearing and less than three weeks before the date fixed for that hearing.

4. Amongst other things the husband’s solicitors advised:

   “…  If this matter proceeds to Trial we will be applying for (the wife) and [the child] to return to Melbourne so that (the husband) can be more involved in [the child’s] upbringing.

   In order to try and resolve this matter (the husband) will concede that (the wife) can continue to live in [New South Wales] with [the child].  This is a very much against his wishes and what he believes is in his daughter’s best interests, but in reality if the parties are to resolve this matter between themselves without judicial intervention, our client is willing to concede that point.”

5. The letter then proceeded to set out proposed orders, including orders which specified the times and communication which the child should have with her father.

6. The wife did not accept the husband’s proposals, although it is fair to say that her response was not a peremptory dismissal of the matters raised by the husband’s solicitors (see Annexure “D4” – letter dated 18 October 2007).

7. Annexure “D5” is a further letter from the husband’s solicitors to the wife’s solicitors.  This letter is dated 29 October 2007 and I note it makes reference to a letter of 26 October 2007 from the wife’s solicitors to the husband’s solicitors.  That letter has not been put before the Court.  A further proposal was made on behalf of the husband.

8. Annexure “D6” is a letter dated 2 November 2007 from the wife’s solicitors to the husband’s solicitors.  Again, reference is made to proposals said to have been contained in the wife’s solicitor’s letter of 26 October 2007.  Whilst, as seen, that letter was not before the Court, it has been submitted on behalf of the wife, and not denied on behalf of the husband, that the wife’s proposals were that the husband spend some overnight time with the child (two nights in New South Wales and one night in Melbourne) each month.  It was said that this effectively accorded with the total amount of time that applied under the interim orders and it was noted that it was not in accordance with the recommendations of the Family Consultant.

9. The final offer is contained in Annexure “D7” which was a written offer received from the husband’s counsel at 5:17pm on 2 November 2007.

10. It can be seen therefore that the first clear Offer of Settlement came from the husband, however the wife has submitted correctly that the offer to withdraw the husband’s application for relocation was only part of his overall proposal.  Thereafter the correspondence indicates attempts by each of the parties to negotiate a resolution as to the other parenting orders.  It is fair to say that it was entirely open to the husband to deal separately with the issue of relocation, and he did not do so.

11. It was submitted on behalf of the wife that her offers were more generous as far as they concerned the time that the child would spend with the husband than the ultimate orders which were made and this is the case.  It is also the case, as was submitted on behalf of the husband, that the ultimate orders were not in the same terms as the offers which were made by the wife.

12. In Browne v Green (2002) FLC ¶ 93-115 the Full Court affirmed that which Nygh J had said in Robinson and Higginbotham (1991) FLC ¶ 92-209 at 78,417, saying:

    “[57]We think that while s 117(2A) does not provide any direct guidance as to where weight should be given in any one particular case, it is very important for the Court to give proper consideration to written offers of settlement that have been made. The insertion of s 117C into the legislation is a clear indication of the desire of Parliament to enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it a proper consideration, is something to which very significant weight indeed ought normally be given.”

13. In Pennisi (1997) FLC ¶ 92-774 the Full Court noted that the plain words of s 117(2A)(f) did not limit a Court’s attention to offers which were greater than the amount awarded, however, the closer the offer was the amount awarded by the Court, the more weight would be attached to the offer.

14. The decisions in Browne v Green and Pennisi have relevance to the answering submissions made on behalf of the husband.

15. It was also submitted on behalf of the wife that significant costs would have been saved by both parties, had the husband accepted the wife’s proposal.  In particular, it was contended that the wife could have avoided the costs of having Counsel and her legal representatives travel to Melbourne for what was in effect a period of five days, given that the Melbourne Cup public holiday was a holiday in Victoria but not in New South Wales.  The costs of having witnesses attend from overseas and interstate would also have been avoided.

16. However, Annexure “D4” (the letter dated 18 October 2007) specified that the wife had already incurred costs in relation to the final hearing, including non-refundable airfares for counsel and solicitor as well as accommodation costs.  It was noted in the letter that arrangements had to be made early, given that the matter was listed during the Melbourne Spring Carnival and that a significant surcharge had been payable.  It was also noted that there had been costs relating to airfares for the wife’s witnesses and that a brief fee was payable to the wife’s counsel whether the matter proceeded to a final hearing or settled.  The amount of the costs which had been incurred prior to 18 October 2007 was not specified.  I take into account that the letter went on to say that, if the wife believed that the husband’s proposal was in the child’s best interests, she would have agreed to it, notwithstanding the costs that had already been incurred.

17. The real problem to my mind lies in the fact that the husband’s proposal to withdraw his application for relocation was dependent upon what he regarded as suitable arrangements for the time which was to be spent by the child with him.

18. Accordingly, to my mind, this matter is more a matter of “conduct” and as such has been earlier taken into account.

Section 117(2A)(g) – Such Other Matters as the Court thinks Relevant

1. It is clear by this sub-paragraph that the list of factors which precede it is not meant to limit the Court’s exercise of discretion. 

2. The husband has raised a number of matters upon which reliance is placed.  At the outset, I repeat that I do not approach this matter as one where it was “improper” for the husband to institute these proceedings.  I have already dealt with the part of his submission relating to delay.

3. It was also submitted that the husband was seeking to maintain and extend an interim order which had allowed him to spend substantial time with the child, and I accept that this is the case.  However, Ms T’s Report drew attention to what she viewed as the adverse impact of those arrangements on the child.

4. I accept that there was a divergence of opinion between Dr J and Ms T, however, it must be recalled that Dr J’s opinion was given in the course of proceedings conducted at a much earlier time, particularly having regard to the child’s tender years.  The husband was, of course, entitled to prefer Dr J’s evidence and to seek to test Ms T’s evidence.

5. It was submitted that the husband had acted promptly and appropriately having heard the “expert evidence” and considered the preliminary observations which I had made.  Until that point was reached, it was said that it was not unreasonable for the husband to place reliance upon the regime which had existed under the interim orders.

6. This overlooks the fact that the husband resiled from the assurance given on his behalf on 5 November 2007 which was to the effect that if Ms T maintained her position in respect of her recommendations after cross-examination, then the husband would consent to orders in accordance with those recommendations.  I have already considered this matter earlier and do not place reliance on it again.

7. Other submissions relate to the fact that this case was a relocation case.  It is the situation that such cases do present the Court with difficult decisions.  However, a relocation case is just one aspect of a parenting case, and as I have already noted, the Full Court made it clear in I (No. 2) that the fact that proceedings are for a parenting application should not make any difference to the approach of the Court in determining an application for costs.

8. Reliance is also sought to be placed on the fact that this was a Less Adversarial Trial.  It was submitted that the key features of the philosophy underlying such proceedings were focussed on the child and her future;  flexibility in approach to meet the needs of a particular situation;  and a less formal and less costly experience than a traditional trial.

9. Division 12A of Pt VII of the Act came into effect on 1 July 2006 and it sets out the legislative framework for conducting child-related proceedings.

10. Subdivision B sets out principles for conducting child-related proceedings. Pursuant to s 69ZN of the Act the Court must give effect to those principles in performing duties and exercising powers in relation to child-related proceedings and in making other decisions about the conduct of child-related proceedings. Furthermore, regard is required to be had to the principles in interpreting the Division.

11. Those principles are:

    “SECTION 69ZN PRINCIPLES FOR CONDUCTING CHILD-RELATED PROCEEDINGS

    Application of the principles

    69ZN(1)  The court must give effect to the principles in this section:

    (a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and

    (b) in making other decisions about the conduct of child-related proceedings.

    Failure to do so does not invalidate the proceedings or any order made in them.

    69ZN(2)  [Principles in interpreting this Division]

    Regard is to be had to the principles in interpreting this Division.

    Principle 1

    69ZN(3)  The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

    Principle 2

    69ZN(4)  The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

    Principle 3

    69ZN(5)  The third principle is that the proceedings are to be conducted in a way that will safeguard:

    (a) the child concerned against family violence, child abuse and child neglect; and

    (b) the parties to the proceedings against family violence.

    Principle 4

    69ZN(6)  The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.

    Principle 5

    69ZN(7)  The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.”

1. The husband’s submissions went on to assert:

   “The husband’s behaviour in this litigation has at all times been consistent with the philosophy of the Less Adversarial Trial and in the circumstances it would be inappropriate to impose Order for costs.”

2. I have to say that I do not accept this submission.  There is nothing to my mind in the “philosophy” of a LAT proceeding which undermines or speaks against the statutory considerations for an order for costs.

Determination

1. Section 117(1), s 117(2) and s 117(2A) are interrelated and the overall structure of these subsections is to provide the Court with a broad discretion, the exercise of which starts with the general rule in s 117(1). My task is to identify and balance all the relevant matters set out in s 117(2A) in order to determine whether or not to make an order for costs. Cases such as Penfold make it clear that the Court does not have to be satisfied that there is a “clear case” or an “exceptional case”. The requirement is that there are matters in the combination of s 117(2) and (2A) which “justify” the conclusion that costs should be ordered. As I have said there is no distinction in principle between a case involving children and a financial case.

2. In my view, and notwithstanding submissions to the contrary, there are justifying circumstances for an order to be made for costs in favour of the wife.  Those circumstances are apparent from the earlier discussion.  The matters which have weighed most heavily with me are the husband’s conduct and the fact that he was far less successful than was the wife.

3. In summary it may be said that in light of Ms T’s Report the husband did not have a strong case, but he did have an arguable case.  It is the situation, as was acknowledged in the wife’s submissions, that Ms T’s Report should not dictate the orders that the Court should necessarily make.  Nonetheless, the recommendations were firm.

4. It is also the case as was submitted, that in the Report Ms T stressed the importance of the attachment process during the first three years of the child’s life and the apparent adverse impact of the existing interim arrangements on the child.  The wife acted upon the advice and recommendations of the Family Consultant, however, the husband preferred to rely on Dr J’s Report, at least until the first day of the final stanza of these proceedings.

5. Until that time the husband had persisted in seeking orders in respect of relocation and shared care.  He was entitled of course to rely on Dr J’s Report, however, it must be noted that this Report was made quite a considerable length of time ago.  Furthermore, even Dr J did not recommend shared care.

6. The husband abandoned the orders sought in respect of relocation at a very late stage and indeed this did not really take place until the first day of the last part of these proceedings.

7. I do not forget that the correspondence indicated that the husband was prepared to withdraw if other satisfactory arrangements were made as to time to be spent.  This however did not take place until some two months after he was made aware of the final orders which the wife would be seeking.  One wonders why the husband did not simply agree to disagree in respect of issues other than relocation and limit litigation to those other parenting orders.

Quantum

1. The wife seeks that I make an order for costs in a fixed amount whereas he husband urges that the costs should be assessed.

2. There is much to be said for fixing costs.  The process for assessment of costs is in itself time consuming and expensive.  There is also of course, the possibility of a later review.  Nonetheless, in the circumstances of this case I feel obliged to accede to the husband’s submission.

3. As I have earlier observed, the amount of costs sought by the wife have been calculated as being two-thirds of the wife’s solicitor/client costs incurred in the period from 1 August 2007 to 19 November 2007.  It may well be that this does result in an appropriate assessment of costs on a party/party basis, however, I cannot be sure of this.

4. Furthermore, there may be questions in relation to some of the disbursements claimed by the wife, such as costs of travel and accommodation for her solicitor and counsel.  Whilst I can readily understand why the wife would wish to have her solicitor attend at the final hearing, it might be that on assessment it may be found that it would have been more appropriate for an agent to be appointed.  Similar questions might be raised in respect of the wife’s desire to have a member of the New South Wales Bar appear in this case.  With respect, there are many barristers at the Melbourne Bar who have considerable experience and expertise in cases such as this.  The question of the wife’s counsel charging for time lost in respect of the Melbourne Cup holiday may also be a matter which requires consideration (see for example, Commissioner of Australia Federal Police v Razzi(No. 2) (1991) 30 FCR 64 per Wilcox J at p 67). I hasten to add that nothing I have said should be taken to suggest that Mr Hamilton or the wife’s solicitor have behaved otherwise than in accordance with all relevant professional standards. These are simply matters which may be the subject of challenge at an assessment and which it is not appropriate for me to determine.

5. It will be recalled that Ms T’s Report was dated 23 July 2007.  It was apparent to me on the second day of the hearing (15 August 2007) that the husband and the wife had considered that Report.  The wife’s solicitors notified the husband’s solicitors the same day, after the hearing, of the final orders which the wife would seek.  To my mind the husband was entitled to have a few days to consider the proposed orders.  Accordingly, I do not accept that the costs should be those after 1 August 2007;  rather should the costs be those incurred after 22 August 2007.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:                 

Date:    23 April 2008