Branson & Anor and Barton

[2011] FamCA 1068

FAMILY COURT OF AUSTRALIA

BRANSON AND ANOR & BARTON [2011] FamCA 1068

FAMILY LAW – COSTS – Between parties in relation to contravention proceedings and substantive proceedings. Section 117(2A) of the Family Law Act 1975 (Cth), paragraphs (a), (c) and (e) in particular. Mother unduly prolonged substantive proceedings and wholly unsuccessful in contravention proceedings. Neither party wholly unsuccessful in substantive proceedings.

Family Law Act 1975 (Cth)

APPLICANTS: Ms Branson & Mr Branson

RESPONDENT MOTHER: Ms Barton

FILE NUMBER: PAC 2885 of 2009

DATE DELIVERED: 7 December 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 6 & 7 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Campton

SOLICITOR FOR THE APPLICANTS: Coleman Greig Lawyers

RESPONDENT MOTHER: In person

Orders

1. That the Mother pay to the Applicant Grandparents costs in relation of the Application for Contravention Applications dealt with on 21 March 2011 in the sum of $4,000 within a period of eighteen (18) months of this date.

2. That the Mother pay to the Applicant Grandparents an amount equivalent to one half of their costs as agreed or failing agreement, as assessed by a proper assessing officer on a party / party basis from 3 May 2011 to the conclusion of this hearing up to the delivery of Judgment.

3. That such amount be paid within a time agreed between the parties or within two and a half (2.5) years from either the date of agreement, or of the date of the issue of the Certificate of Assessment pursuant to these Orders.

4. That all applications and cross applications be and are hereby dismissed.

5. That all issues be removed from the Active Pending Cases List.

6. That all material produced on subpoena be returned not before fifty-six days from the date of these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Branson and Anor & Barton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:   PAC 2885 of 2009

Ms Branson and Mr Branson

Applicant Grandparents

And

Ms Barton

Respondent Mother

REASONS FOR JUDGMENT

Introduction and Background

1. This matter was before me yesterday in respect of parenting issues between the Applicant grandparents and the Respondent mother and father, although the father took no active part.  I was told that there were matters upon which the parties could reach agreement and discrete issues which remained incapable of resolution between the parties.  Accordingly, I let the matter stand in the list.  The situation thereafter was that the parties brought in a document which dealt, by consent, with parenting issues in respect of the two subject children, B and C.

2. I made those Orders by consent of the grandparents and the mother, noting that the father had been at Court earlier that day but had left without taking any further part in the proceedings.  The substantive proceedings were thereby finalised.

3. The outstanding issues were then identified to me as the issue of:-

   ·The costs in respect of contravention proceedings that had been brought by the mother, and which were dealt with on 21 March 2011, when the costs of the grandparents were reserved; and

   ·The costs of the paternal grandparents of the substantive proceedings. 

4. Two other matters had been identified.  First, the mother made a claim for costs.  She then however indicated that she had suffered no costs as a result of the proceedings, and did not press her costs application. 

5. There was then a child support departure application by the mother.  I declined to deal with this application saying that there was another and proper pathway that should be followed.  

The Costs Applications

1. Mr Campton put to me his arguments in respect of the costs application.  He made it clear that he sought costs in the sum of $4,000.00 in respect of the contravention applications dealt with on 21 March 2011. 

2. The mother made a very large number of allegations of contravention against the grandparents.  I required her to nominate four of the contraventions that she alleged and relied upon.  I then charged the grandparents and proceeded to hear and determine the matter.  On several occasions, I warned the mother that in situations such as this, that is dealing with a contravention application, if a party failed to make out their case, it was highly probable that they would suffer an order for costs.

3. Notwithstanding that, the mother, on each occasion it was put to her, indicated that she wished to proceed.  The end result was that the applications were dismissed. 

4. The Applicant grandparents then also sought their costs of the substantive proceedings.  Reliance was placed upon the relevant sections of the Family Law Act 1975 (Cth) (which I hereinafter refer to as “the Act”).

The Law to be Applied

1. In the Family Court of Australia costs are governed by section 117 of the Act. It is clear that the usual rule is that each party pay their own costs. However, in circumstances so justified, the Court may make an order for costs. The circumstances need not be special or exceptional, but they must be such as to justify the making of a costs order. In making a determination as to whether a costs order should or should not be made, I am required to take into account the matters set out in section 117(2A) of the Act.

2. The first of the matters I am to consider is the financial circumstances of each of the parties (subsection 117(2A)(a)).  The mother, as at today, tells me that she is in very poor financial circumstances, receiving only benefits from the Commonwealth.  However, the mother clearly, in earlier times, had said that she was in employment (which she now explains as being for one day only).  She asserted in her affidavit material that she was the owner of a successful business.  She now says that that business was never successful, and indeed seems to have ceased operating.  It does appear on material that has been produced to me and made an exhibit that the business may have been a joint enterprise with her husband.

3. I am not able to say precisely what is the mother’s financial situation.  I am however satisfied that she is not being completely truthful with me when she tells me of her difficult financial circumstances at present.  I am satisfied on the material that I have before me that she has some capacity to pay an order.  I will return to that at a later part of these reasons for Judgment.  If I were to make an order I would consider allowing her considerable time to pay.  I am satisfied, and I will turn to this shortly in these reasons for Judgment, that the Applicants’ means are modest.  They have funded the proceedings from their own resources.

4. I must take into account whether or not either party is in receipt of Legal Aid (subsection 117(2A)(b)).  The mother’s evidence is that she has had a number of Legal Aid applications made on her behalf but, as I understand her evidence, she has not been in receipt of Legal Aid, other than for a conference which was not able to produce a result in this matter.  The grandparents have never been in receipt of a grant of legal aid. 

5. Subsection 117(2A)(c) of the Act deals with the conduct of the parties to the proceedings.  In respect of the contravention proceedings this particular factor, when coupled with subsection (e), which deals with whether any party has been wholly unsuccessful, are the factors that have the most compelling weight in reaching a determination.  The mother was determined to proceed despite warnings.  She was aware, or should have been aware from what she was told, that were she to fail in establishing the alleged contraventions, an order for costs would be almost inevitable.  She proceeded in the face of those warnings.  The end result was that she was wholly unsuccessful in establishing any contravention as against the grandparents. 

6. Accordingly, in the contravention matters, wherein costs were reserved, I am satisfied that an order for costs against the mother is inevitable.  I am of the view that the amount claimed by the grandparents, being $4,000.00, is in all the circumstances proper.  Indeed, it may be seen that that amount is less than might otherwise have been claimed in this case.  In all the circumstances of the case, I am satisfied that I should make an order that the mother pay the costs of the Applicant grandparents in respect of the contravention application in the sum of $4,000.00. 

7. I have already dealt with the issue of the mother’s financial position, finding that she is not as badly off as she would now have me believe.  However, I am satisfied that she is by no means well to do.  In all the circumstances of the case, I am of the view that it would be proper to allow her a period of 18 months in which to pay that sum of $4,000.00 and I will order accordingly. 

8. I turn then to a much more significant issue, and that is the costs of the grandparents in the substantive proceedings. Again, I am required to look at those matters that are set out in section 117(2A) of the Act, and I have said all I wish to say in respect of the issue of the financial means of parties and the question of Legal Aid, save and except this.

9. I accept that the grandparents are of modest means.  I accept that they have income, and I accept that they have property.  However, they are by no means in a position where if an order were not made in their favour for costs, there would be no impact upon their standard of living and their financial resources. 

10. I turn then to the issue of the conduct of the parties in so far as the substantive proceedings are concerned.  In this case each party has made significant allegations against the other.  It is put on behalf of the grandparents that the mother has returned again and again to the issue of some mental health or mental incapacity on the part of the grandmother.

11. I have had tendered to me documents produced by Dr D.  The mother has had the opportunity of inspecting those documents.  She identifies documents as being reports of Dr D dated 2 September 2010, 30 September 2010 and 19 January 2011.  She further relies upon a letter of December 2010 to Mr E and finally a letter in respect of the grandmother’s employment.  The mother extracts from that correspondence what she asserts to be incontrovertible evidence that the grandmother suffers from a mental health defect. 

12. I have read those reports.  I do not come to the conclusion that the mother urges upon me.  I am satisfied that the paternal grandmother has had some difficulties in the past.  I am not satisfied on the material so produced to me, so far as I need make this determination, reflect any serious mental health issues.  The significance of them, Mr Campton says, is that the mother simply persists in making allegations against the grandmother.  Indeed, the mother in her submissions to me, it seemed, could not help but try and agitate that issue further when, had she stopped and thought, it was only doing her own case harm.

13. However, there has been what might be called a robust exchange of accusations in this matter.  The grandparents have certainly not spared themselves in what they have alleged against the mother as being matters that would agitate against her being a proper caretaker of the children. 

14. It is of real significance that a careful report dated 21 April 2011 was prepared by Ms F, a senior consultant at this Registry.  There can be no doubt on any reading of the document that Ms F was indicating that the children should remain with their grandparents and spend time with their mother.

15. I am satisfied that I should take this fact into account when endeavouring to reach a decision.  The mother eventually settled the matter on the basis that the children remain with the grandparents.  This certainly came very late in the proceedings.  Nonetheless, neither party can be said to have been wholly unsuccessful in the substantive proceedings. 

16. To my mind, however, these proceedings have been unduly prolonged by the mother continuing in her strongly held view that the children should have come to live with her.  This view caused the matter to be extended to the point that a final hearing was commenced.  The grandparents were put in the position of having to respond to material that the mother put on, and the allegations that she made.  This required extensive work to be undertaken on behalf of the grandparents. 

17. I expressed my concern in earlier exchanges with the mother that if she believed that the grandmother was beset by mental health difficulties then she would not have consented with the children continuing to live and remaining with the grandparents.  

18. Be that as it may, I have come to this conclusion.  That from a period 14 days after the date of the report the mother should bear a proportion of the costs of the Applicant grandparents up to and including the delivery of this Judgment.  As I have said, there have been accusations made on both sides.  The grandparents have put their case strongly against the mother.  In the circumstances, I am satisfied that it would be appropriate as and from the date I have specified, that is, 14 days after the release of the report of Ms F, that the mother should pay one half of the costs of the grandparents up to the conclusion of the proceedings, including the delivery of this Judgment.

19. That is a matter that I do not dare endeavour to assess.  It will be necessary for these costs to be assessed by a competent and proper officer.  I do propose to allow two and a half years for payment of the amount thus arrived at.  That period will run from the date of any agreement reached by the parties, or from the date upon which a certificate of assessment is issued. 

20. The Orders that I then make are set out under the heading Orders before these Reasons for Judgment.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 7 December 2011.

Legal Associate:       

Date:    7 March 2012