Bookhurst and Bookhurst (Costs)
[2010] FamCAFC 103
•11 June 2010
FAMILY COURT OF AUSTRALIA
| BOOKHURST & BOOKHURST (COSTS) | [2010] FamCAFC 103 |
| FAMILY LAW - COSTS – Appellant seeks costs against the respondent – Respondent seeks no order as to costs – Appeal successful in part – Appeal opposed by the respondent and the Independent Children’s Lawyer – Error by trial judge in relation to supervision order – Appellant unsuccessfully pursued appeal against discretionary matters – No error found in relation to those matters – Respondent made an offer of settlement – Orders sought by the appellant in the appeal were substantially different to those made by the Full Court – No circumstances justifying an order for costs. FAMILY LAW - COSTS – CERTIFICATES – Error on the part of the trial judge which led to an order for re-hearing – Certificates for the re-hearing granted. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Browne v Green (2002) FLC 93-115 Collins and Collins (1985) FLC 91-603 Harris and Harris (1991) FLC 92-254 Penfold v Penfold (1980) FLC 90-800 |
| APPELLANT: | Mr Bookhurst |
| RESPONDENT: | Ms Bookhurst |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of New South Wales |
| FILE NUMBER: | SYC | 1832 | of | 2009 |
| APPEAL NUMBER: | EA | 19 | of | 2009 |
| DATE DELIVERED: | 11 June 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May and O’Ryan JJ |
| DATE OF SUBMISSIONS: | 31 March 2010, 13 April 2010 and 28 April 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 January 2009 |
| LOWER COURT MNC: | [2009] FamCA 6 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Slade Manwaring Solicitors |
| SOLICITOR FOR THE RESPONDENT: | Karras Partners Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of New South Wales |
Orders
It is ordered that there be no order as to the costs of the appeal and no order as to the costs reserved on 25 February 2009, 20 March 2009, 28 April 2009 and 26 June 2009.
The Court grants to the appellant, the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant, respondent and the Independent Children’s Lawyer in respect of the costs incurred by the appellant, respondent and the Independent Children’s Lawyer in relation to the re-hearing of the application.
IT IS NOTED that publication of this judgment under the pseudonym Bookhurst & Bookhurst (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 19 of 2009
File Number: SYC 1832 of 2009
| Mr Bookhurst |
Appellant
And
| Ms Bookhurst |
Respondent
REASONS FOR JUDGMENT
Introduction
On 3 March 2010 the Full Court allowed the father’s appeal, in part, against parenting orders made by Rose J on 16 January 2009. The appeal had been resisted by both the mother and the Independent Children’s Lawyer.
The Court decided that the terms of the supervision order, specifically the mechanism to vary or cease supervision, was an error. For the father’s time with the children to become unsupervised, the order required a report from a psychiatrist or psychologist giving an unqualified opinion that the father:
…does not nor is it reasonably forseeable that he will pose a risk to the three children or any of them of him of engaging in abusive behaviour, physical or emotional to or in the presence or hearing of the children or any of them regardless of the period of time including overnight periods that may be spent by such children or child in the care of the father.
(Order 5(d))The father provided evidence on appeal, which we allowed, indicating that a psychiatrist or psychologist would not provide such an opinion, described as an “absolute guarantee”, because of ethical obligations. Consequently, the Full Court determined that as the terms of the order were impossible to fulfil, the order could not be allowed to stand.
The father unsuccessfully asserted that the trial judge erred in imposing a supervision regime, failed to have regard to the views of the children, failed to have regard to relevant evidence, denied the father natural justice and that the manner in which the trial judge dealt with the primary consideration of meaningful relationship was in error.
The Full Court made directions in relation to the filing of submissions by the parties, including the Independent Children’s Lawyer, with respect to costs. Those submissions encompass the reserved costs of previous proceedings:
· the father’s application for leave to appeal out of time, granted 25 February 2009;
· settling of the appeal book index on 20 March 2009;
· the father’s application for expedition of the appeal, granted on 28 April 2009; and
· the mother’s application to adjourn the appeal hearing date, dismissed on 26 June 2009.
Submissions have been filed on behalf of both the father and the mother.
We understand that the Independent Children’s Lawyer telephoned the Registry on 22 April 2010 to enquire about the process for filing submissions out of time. The Independent Children’s Lawyer was apparently advised that the submissions could be filed with the consent of the parties, or she could file an application for leave to file the submissions out of time. We understand that the mother indicated she consented to the late filing but the father did not. No application seeking leave to file submissions out of time has been filed.
The father seeks an order for costs against the mother, including the costs of the appeal and all the reserved costs save those associated with the application to appeal out of time. He does not seek any orders against the Independent Children’s Lawyer.
It is the mother’s position that each party should bear their own costs, pursuant to s 117(1) of the Family Law Act 1975 (Cth) (“the Act”).
The relevant law
Section 117 of the Act provides that subject to sub-section 117(2), each party shall bear their own costs. It is necessary for the Court to be of the opinion there are circumstances that justify an order for costs.
The relevant section provides the Court shall have regard to matters listed in s 117(2A). Of relevance in this case are the following:
· the financial circumstances of the parties;
· the conduct of the proceedings;
· whether either party or the Independent Children’s Lawyer is in receipt of legal aid; and
· any offers of settlement.
It is entirely clear that decisions to award costs attract a wide discretion (see Penfold v Penfold (1980) FLC 90-800 at 75,053 – 75,054; Collins and Collins (1985) FLC 91-603 at 79,877; Harris and Harris (1991) FLC 92-254 at 78,711; and Browne v Green (2002) FLC 93-115 at 89,162).
Discussion
The parties’ submissions address both the question of reserved costs and the costs of the substantive appeal. As we have already observed, the father seeks an order for costs against the mother. The mother asks that each party bear their own costs of the appeal and previous hearings.
Reserved costs – submissions
Sensibly, the solicitors for the father do not seek costs in relation to the application for leave to appeal out of time, as it is acknowledged that the “reasons for the delay was the fault of the [father’s] solicitor.”
Both parties agree that the reserved costs of the settling of the appeal book index should follow the ultimate costs order.
With respect to the father’s application for expedition, Mr Holmes, the solicitor for the father, submitted that since expedition was granted costs ought to follow the ultimate costs order in relation to the appeal. He further noted that the mother neither consented nor opposed the application but her solicitor “addressed the Court for a lengthy period about why the Court might not grant expedition.”
On this question, Mr Karras, solicitor for the mother, submitted:
The appellant sought a priority over other cases pending determination by the Full Court and was ultimately able to persuade the Full Court that such an advantage should be accorded to him. This is not a matter which should resound in costs in circumstances where the appellant was seeking the indulgence of the Court.
In relation to the costs of the mother’s unsuccessful application to adjourn the appeal hearing date, Mr Holmes contended there is “no reason why costs ought not be awarded in favour” of the father in respect of that matter.
Against this, it was submitted by the mother’s solicitor that the application was “not without merit” and refers to paragraph 32 of Boland J’s reasons for dismissing the application, where her Honour said:
32.…It is always a difficult exercise weighing a number of finely balanced factors, and in this case I find the scales come down on the side of the matter proceeding on 31 August 2009.
Reserved costs – conclusion
As will be seen later in this judgment, we have resolved to make no order as to costs as between the parties and the Independent Children’s Lawyer.
Consequently, as to the reserved costs, following the submissions that costs for these proceedings (other than the mother’s application to adjourn the appeal date) should be consistent with an order in relation to the appeal, we would make no order.
In relation to the mother’s unsuccessful application we would also make no order. By reference to the judgment of Boland J it can be seen that there are no circumstances that would justify an order for costs.
Costs of the substantive appeal
Mr Holmes submitted that the Court ought to order costs in favour of the father against the mother because the appeal was successful and the matter has been remitted for re-hearing. The fact that the appeal was only partially successful “should not cause any diminution or reduction in the size or scope” of the costs order.
It was submitted that both the respondent mother and the Independent Children’s Lawyer resisted all of the grounds of appeal unsuccessfully and that:
A central or fundamental aspect of the Appeal was the exercise of discretion by the Trial Judge in relation to the time and conditions in relation thereto to be spent by the children with their father – Orders were made without the opportunity to be heard.
Mr Holmes stated that the “comparative success” of the appeal, being that there is to be a re-hearing, ought to lead this Court to make an order for costs against the mother.
In response, the mother’s solicitor submitted that there are “no circumstances which would justify” the Court making an order for costs if regard is had to the factors referred to in s 117(2A) of the Act. He then addressed each of the s 117(2A) factors and relevantly noted the following:
· the Court does not have any discrete evidence about the financial circumstances of the parties;
· there is nothing in the mother’s conduct of the proceedings to “bring about a punitive or indemnity consideration of a costs award”;
· the mother was entitled to rely on the orders of Rose J; and
· neither party was wholly unsuccessful in the appeal proceedings.
In response to this submission, Mr Holmes submitted that the costs sought by the father are “in the usual manner for a successful Appellant” and that he is not seeking “punitive” or “indemnity” costs.
Of some significance, on 9 June 2009 the mother made an offer to the father to resolve the appeal.
A copy of the offer is attached to the submissions. In summary, the following compromises were offered by the mother:
· clause 1 – providing further telephone communication on Sundays in addition to Tuesday and Thursday;
· clause 2 - an extension of weekend time during the school term, subject to the presence of a responsible adult between 6:00pm Saturday and noon Sunday, rather than being supervised for the whole period;
· clause 3 - the children spend every Wednesday afternoon with the father, rather than alternate Wednesdays, subject to their Scout commitments;
· clause 4 - spending five consecutive days with the father during the end of school term holiday periods, subject to the presence of a responsible adult between 6:00pm to noon of each day, rather than being supervised for the whole period;
· clause 5 - two discrete periods of five and four consecutive days with the father during the end of year holiday periods, subject to the presence of a responsible adult between 6:00pm to noon of each day; and
· clause 6 - compensatory time to make up for any time the father loses as a result of the children being with the mother for Jewish holidays.
In addition to the above, clause 7 was proposed to amend order 5(d):
The times that the children spend with [the father] pursuant to Clauses 2, 4 and 5 above will be subject to [the father] undertaking ongoing consultation with a psychiatrist of his choice on a weekly basis with [the father] providing evidence of such consultations by providing a copy of the invoices issued by the treating psychiatrist. In addition, our client is prepared to amend the Orders made by Justice Rose to remove the word ‘unqualified’ where it appears in respect of the psychiatrists [sic] opinion.
With respect to the offer of settlement, Mr Holmes submitted that the offer “sought to severely restrict the time and circumstances in which the children would be entitled to spend time with” the father. He stated that clause 7 in particular imposed an ongoing obligation on the father which was more “extensive and onerous” than that contained in Rose J’s orders. With respect to the requirement for a “responsible adult” to be present during overnight time with the father, it was submitted that there is still no agreement between the parties in this regard as to the identity of such person. In summary, Mr Holmes submitted:
In other words, and in most respects, the Offer in that regard must be considered as meaningless. The effect of the Offer was that [the mother] imposed as a pre-condition permanent ongoing psychiatric treatment on a weekly basis by [the father], effectively indefinitely. The second pre-condition was the concept that [the father] must be agreeable to whomever was to be a responsible adult and there has been no evidence to date that any such agreement could ever occur. The Offer proposed even more onerous notice requirements than the Trial Judge’s Orders. For example, whereas the longest minimum period of notice [the father] was obliged to give [the mother], pursuant to the Trial Judge’s Orders, was 21 days, the Offer proposed that [the father] must give [the mother] 3 months notice in respect of ‘spending time with’ proposals in certain school holiday periods.
In order to evaluate the comparative success of the appeal by the father, and the significance of the offer of settlement made by the mother, it is necessary to consider the terms of the orders made by the trial judge and the reasons of the Full Court in some detail.
Order 4 of the orders made by Rose J provided for the children to spend supervised time with the father during school holidays and on alternate weekends, and unsupervised time during the school term on Wednesdays and alternate Saturdays during the day. Order 5 provided:
That Orders numbered 4(c) and 4(i)(i) are varied in that the period of time referred to shall be unsupervised and overnight as and from the expiration of seven (7) days from the date that the father furnishes the mother with a report from a psychiatrist or pyschologist which states:
(a)The name, place of practice, qualifications, and experience in providing adult therapy.
(b)The Reasons for Judgment given this day has been read by him/her.
(c) The nature and extent of therapeutic treatment provided to the father.
(d)The unqualified opinion that the father does not nor is it reasonably forseeable that he will pose a risk to the three children or any of them of him of engaging in abusive behaviour, physical or emotional to or in the presence or hearing of the children or any of them regardless of the period of time including overnight periods that may be spent by such children or child in the care of the father.
The Full Court set aside orders 4 and 5 made by Rose J for the following reasons:
63.In the circumstances of this case, in view of the considerable limitation placed on the father’s time with the children because of the order for supervision, the limited opportunity for the father or his lawyers to make submissions in relation to the ideas raised by the trial judge may have lead in itself to a consideration of whether such order should be set aside. The order as ultimately made, order 5(d), was far more demanding than as discussed with counsel.
64.With respect to the question of natural justice, his Honour raised the possibility of requiring the father to provide some assurance to the mother with counsel during submissions on the final day of hearing. However, at no time were the specific terms of order 5 contemplated and the father was not afforded an opportunity to provide evidence in relation to this requirement.
65.The difficulty was exacerbated in this case by the failure of the father’s lawyers to call the father’s treating psychiatrist by reason of their interpretation of his Honour’s earlier ruling.
Conclusion
66.It is clear to us that paragraph 5 of the orders must be set aside. It is essential as his Honour was concerned to do, to create some mechanism for the supervision of the father’s time to be revisited and consideration given to its continuation, cessation or perhaps modification. Unfortunately, the method chosen by his Honour is unworkable for a number of reasons including as explained by Dr Waters. It is also necessary to set aside paragraph 4 of the orders as they somewhat depend on paragraph 5.
67.The matter is to be remitted. We would not want to fetter the discretion of the trial judge hearing the matter. A period of more than a year has expired since the orders were made by Rose J. As we see it, the issue to be determined is what time should the children have with the father, if it is to be supervised, for how long such supervision should persist, and that some review mechanism be set in place.
As we have already observed, the father also unsuccessfully appealed against orders relating to a range of discretionary matters, including the trial judge’s allocation of parental responsibility for health, culture and religion to the mother only, his treatment of the evidence relating to the views of the children and the evidence of the single expert. The Full Court was not persuaded by any of the submissions in relation to those complaints.
The orders sought by the husband in the appeal included orders for unsupervised time with the children during school term, being substantial time, school holiday periods and that both he and the mother have equal shared parental responsibility for the children. The father also sought compensatory time for any time lost because the children were with their mother on Jewish holidays and orders in relation to telephone communication.
We also refer to the parenting orders which the father initially sought before the trial judge as set out in the response filed 23 March 2007. Those orders included provision for the children to spend time with the father in a week about arrangement during the school term and for half of the school holiday periods. The father also sought an order for equal shared parental responsibility.
Apart from the question of the offer by the mother and the partial success of the appeal, we see no circumstances which would justify an order for costs. As to the father’s partial success this must be measured against the orders he sought on appeal. It can be seen that the success was limited. The impact of the success is also reduced by the importance of the mother’s offer, which while imposing regular medical attention made a number of important concessions. We are of the view that overall there should be no order as to costs.
Costs certificates
Costs of the appeal
It was an error on the part of the trial judge which led to the appeal being allowed in part and an order for re-hearing. We are of the view that the mother and father should however not have certificates for the hearing of the appeal because the appeal was only partly successful and it was opposed by the mother.
Costs of the re-hearing
We have a different view in relation to the costs of the re-hearing. A re-hearing is necessitated by the orders that the appeal be allowed in part. We would make the usual order for a certificate for each party. The Independent Children’s Lawyer also asked for a certificate at the conclusion of the appeal hearing and we would make the same order in their favour should they wish to pursue it.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 11 June 2010
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