Brogden and Brogden

[2019] FamCA 900

FAMILY COURT OF AUSTRALIA

BROGDEN & BROGDEN [2019] FamCA 900

FAMILY LAW – COSTS – Where there was an Application before the Court to review a decision of the Senior Registrar – Where the Senior Registrar made an order for no time with the father– Where the father sought supervised time during the Review – Where the court considered s117(2A) of the Family Law Act 1975 (Cth) and the principles in Hawkins & Roe – Where no grounds for a costs order were found – Application dismissed. 

Family Law Act 1975 (Cth) s117(2A)

Hawkins & Rowe (2012) 47 FamLR 526

APPLICANT: Ms Brogden

RESPONDENT: Mr Brogden

FILE NUMBER: SYC 2521 of 2019

DATE DELIVERED: 29 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

IN CHAMBERS: 29 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: McGrath Dicembre & Company

SOLICITOR FOR THE RESPONDENT: Rivera Legal

Orders

IT IS ORDERED

1. That the application for costs filed 14 October 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2521 of 2019

Ms Brogden

Applicant

And

Mr Brogden

Respondent

REASONS FOR JUDGMENT

1. On 17 September 2019, reasons were delivered and orders made in relation to the parenting arrangements for the two children of Ms Brogden (“the applicant”) and Mr Brogden (“the respondent”).

2. The application being determined was the father’s application to review orders made by Senior Registrar Campbell. The effect of those orders was to suspend the time that the father spent with the children.

3. The orders made on 17 September 2019 continued the suspension.

4. On 14 October 2019 the applicant filed an Application in a Case seeking costs.

5. In support of her application, the applicant relies on an affidavit sworn on 13  October 2019 and written submissions. Although it is not stated in the Application in a Case, it is clear from the affidavit of the applicant that she is seeking indemnity costs.

6. The respondent, who opposes the application for costs, relies on an affidavit sworn on 13 November 2019.

7. The application falls to be determined in accordance with the provisions of ss117 (2A) of the Family Law Act 1975 (Cth) which are set out below:

   (2A) In considering what order (if any) should be made under subsection (2), the court shall 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, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)    whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)   whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)    whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

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

8. I will deal with each relevant factor.

9. There is no evidence of the financial position of the parties. The applicant’s affidavit is silent. The respondent seeks to give wholly inadmissible evidence about the applicant’s financial position and that of her present partner. I accept that the respondent pays child support and has an instalment agreement with the Australian Taxation Office but there is otherwise no evidence about his financial position. However, I note that the respondent was represented by Senior Counsel at the hearing before me.

10. It is relevant that the application before the Court was an application to review a decision of the Senior Registrar. The relevance is that the respondent had already had the benefit of knowing upon what evidence the Senior Registrar relied in making his decision and he had the benefit of the Senior Registrar’s ex tempore reasons.

11. The respondent was wholly unsuccessful.

12. The only offer of settlement which has been brought to my attention is the offer made by the applicant’s solicitors on 3 September 2019 in relation to a hearing on 6 September. The applicant offered to pay her own costs if the application were withdrawn. I have not been made aware of any response to that offer.

13. However, the position of the respondent at the hearing before me was significantly different from that which he proposed before the Senior Registrar. Senior Counsel for the father submitted that the father’s time with the children should be professionally supervised.

14. The Full Court in Hawkins & Rowe (2012) 47 FamLR 526 stated:

    [13] In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.

    [14] In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.

15. Their Honours further stated at 549:

    [146] While in this case the judge expressed adverse findings about the conduct and attitude of the father in his reasons, it is relevant to note that there was no allegation or finding of dishonesty. Nor did his Honour make any adverse findings about the father’s conduct of his case at the trial. Counsel for the mother conceded in oral submissions before us that at no point during the trial did his Honour direct the father to cease repetitive questioning, or to move his questioning more quickly, for example.

    [147] While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

16. I am unable to find that the respondent’s conduct of these proceedings comes within those categories of behaviour to which the Full Court makes reference. Significantly, the respondent, no doubt on the advice of Senior Counsel, compromised his position in conceding that, if he were to spend time with the children, that time should be supervised.

17. I am not satisfied that it is appropriate to make an order for costs.

18. I am not therefore, required to determine whether indemnity costs are justified although I note that no submissions were addressed to that issue by the applicant.

19. The application for costs will be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 November 2019.

Associate: 

Date:  29 November 2019