Carpenter and Carpenter and Ors
[2014] FamCA 1190
•10 September 2014
FAMILY COURT OF AUSTRALIA
| CARPENTER & CARPENTER AND ORS | [2014] FamCA 1190 |
| FAMILY LAW – PARENTING – COSTS – where the father seeks an order that the mother and/or her lawyers pay his legal fees of and incidental to parenting proceedings – where the father has failed to demonstrate that an order ought be made pursuant to r 19.10 of the Family Law Rules 2004 (Cth) as against the mother’s lawyers – whether an order for costs ought be made against the mother – whether s 117AB of the Family Law Act 1975 (Cth) applies – where the circumstances did not justify a departure from s 117(1) of the Family Law Act 1975 (Cth) – father’s application for costs dismissed. |
Family Law Act 1975 (Cth)
Family Law Legislation (Family Violence and Other Measures) Act 2011 (Cth)
Family Law Rules 2004 (Cth)
| Carpenter & Carpenter [2014] FamCAFC 100 Charles & Charles [2007] FamCA 276 Child Support Registrar & Kanavos (2010) 44 Fam LR 422 I and I (No 2) (1995) 22 Fam LR 557 Prantage & Prantage [2013] FamCAFC 105 |
| APPLICANT: | Mr Carpenter |
| 1ST RESPONDENT: | Ms Carpenter |
| 2ND RESPONDENT: | Waterford Law |
| 3RD RESPONDENT: | Ms Merkin of Counsel |
| FILE NUMBER: | BRC3510 | of | 2011 |
| DATE DELIVERED: | 10 September 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| WRITTEN SUBMISSIONS COSTS: | Father: 20 December 2012 Mother: 16 January 2013 Ms Merkin of Counsel: 16 January 2013 Waterford Law: 5 February 2013 |
REPRESENTATION
| THE APPLICANT: | Damien Greer Lawyers |
| THE 1ST RESPONDENT: | Self-Represented |
| THE 2ND RESPONDENT: | Waterford Law |
| THE 3RD RESPONDENT: | Carter Newell |
Orders
That the husband’s application for costs as against the wife be dismissed.
That the husband’s application for costs as against the wife’s lawyers be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carpenter & Carpenter and Ors 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 BRISBANE |
FILE NUMBER: BRC3510 of 2011
| Mr Carpenter |
Applicant
And
| Ms Carpenter |
1ST Respondent
And
| Waterford Law |
2ND Respondent
And
| Ms Merkin of Counsel |
3RD Respondent
REASONS FOR JUDGMENT
On 29 November 2012 I made parenting orders consequent upon a trial that spanned some six days. As part of those orders, I directed that any applications for costs to be made by the filing of written submissions. On 20 December 2012 the father made such an application.
The mother’s appeal against my parenting orders intervened. On 18 June 2014, the Full Court dismissed that appeal (Carpenter & Carpenter [2014] FamCAFC 100).
These reasons pertain to the father’s application for an order that “…the Wife and/or her lawyers pay his costs of and incidental to [the trial] proceedings on an indemnity basis.”
The order sought by the father is not otherwise particularised. For example “lawyers” is not further defined and no specific orders referable to specific respondents are sought. It is assumed (as, it seems, did the responsive written submissions from the mother’s counsel and solicitors and, indeed, the self-represented mother herself) that an order for indemnity costs is sought jointly and severally against all three respondents.
The Claim for Costs Against “the Lawyers”
The power to award costs is statutory. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party shall bear their own costs (s 117(1)). That section is made subject to s 117(2).
Section 117(2) governs the circumstances in which, contrary to the general rule in sub-section (1), costs might be awarded. Section 117(2) requires the establishment of “circumstances that justify” an order for costs. Section 117(2) is, in turn, subject to, relevantly, sub-section (2A) which prescribes a number of matters to which the court must have regard in deciding “what order (if any) should be made under subsection (2)...”
Importantly, s 117(2) is not confined to the making of orders for costs against parties to the litigation; the section empowers the court to make “…such order as to costs … as the court considers just.” Section 117(2) is also made subject to “the applicable Rules of Court” (relevantly, the Family Law Rules 2004 (Cth) (“the Rules”)). No mention is made of the Rules in the husband’s submissions.
The Rules make specific provision for costs orders against lawyers. Rule 19.10 provides that:
A person may apply for an order under subrule (2) against a lawyer for costs thrown away during a case for a reason including:
(a) The lawyer’s failure to comply with these rules or an order;
(b) The lawyer’s failure to comply with a pre-action procedure;
(c) The lawyer’s improper or unreasonable conduct; and
(d) Undue delay or default by the lawyer.
(Emphasis added)
“Lawyer” is defined in s 4 of the Act as “...a person enrolled as a legal practitioner of (a) a federal court; or (b) the Supreme Court of a State or Territory.”
A lawyer’s first duty is to the Court. That important matter informs the consideration that a lawyer should be assumed to act only upon the instructions of the client (assuming those instructions do not require unlawful or unethical conduct). Those factors combine to produce the result that a costs order against a lawyer should result from conduct attributable to the lawyer distinct from conduct of, and attributable to, the party.
The written submissions filed on behalf of the father contend that:
2.The basis upon which such an order [for costs as against, inter alia, the mother’s lawyers] is sought is that:
(a)It was the decision of the wife to withhold the children from contact with the father which necessitated the commencement of these proceedings by him;
(b)The decision of the mother had no foundation in fact which warranted the decision made by her;
(c)The trial of these proceedings was conducted by the wife in a manner which incurred unnecessary costs to the husband;
(d)As the wife at no time asserted she would have conducted the trial in any different manner from that adopted by her lawyers, there exists no basis for a claim that such costs should be paid by any other person.
The basis upon which any liability for costs should rest with the mother’s “lawyers” is not apparent from that pleading. Nor is it apparent from any other part of the husband’s written submissions. Indeed, in terms, sub-paragraph (d) would appear to contradict the central thrust of the argument that someone other than the wife (i.e. her “lawyers”) should be ordered to pay costs.
Actions taken, and things said, by trial counsel for the mother during the course of the trial gave me cause for significant concern as to whether either or both were based on instructions or the personal views or, indeed, an “agenda”, of the mother’s counsel. Similar concerns were expressed by the Full Court as can be seen both from their Honours’ reasons (for example, at [101]ff) and also from their Honours’ referral of counsel’s conduct to the Bar Association of Queensland (at [117]).
Yet, whatever else might be said about counsel’s words and actions, no part of the written submissions filed on behalf of the husband make reference to any such words or actions, nor suggest that any or all should sound in an order for costs against her.
Such basis for the claim against “the lawyers” as might be discerned from the submissions on behalf of the father appear to centre upon the contentions that an order is justified by reference to:
· The mother’s contention “through her counsel” that “…each and all of the statements made by [the child, purportedly indicative of sexual abuse] … should be taken literally and the conduct to which they relate be accepted as having occurred exactly as described.”
· My findings which largely reject the evidence of the mother and her sister, including one particular aspect of the mother’s evidence which I found to be untruthful (at trial reasons [38]-[39]).
· My reference in the trial reasons (at [62]) to “… a large quantity of the voluminous material filed by the mother…” which “…is irrelevant.” (It should be noted that, as the husband’s submissions also point out, I there also found that “[the wife] prepared much of it herself”).
· The mother “requiring” me to “canvas the expertise of” two reporting experts, and my findings (at [69], [70], [77]) dismissing the argument on behalf of the mother that the expert evidence should be rejected.
How any of those matters, or all of them together, is said to sound in an order for costs against the mother’s counsel or solicitors is not expanded upon. Nor is it apparent to me.
Having referred to only those matters, the concluding summation of the argument that “the lawyers” should be liable for costs is that:
It is submitted that the mother has failed to not only satisfy the court as to the [sic] credibility but also the substance of her argument as to the evidence to be considered by the court.
It is submitted by the husband that the wife has put the husband to excessive expense in having to consider the significant volume of material placed before the court by the wife in these proceedings but also the aborted trial before Federal Magistrate Coates.
(Emphasis added).
The submission concludes:
The husband seeks costs of the proceedings on an indemnity basis.
It will be immediately apparent that the ultimate submission makes no reference to “the lawyers”. Nothing contained in the preceding summation of the argument seeks to attribute any of the specified conduct to anyone other than the mother herself.
No foundation for the claim against “the lawyers” is established, whether by reference to the matters specified in r 19.10 or otherwise.
The rejection of the husband’s claim becomes, effectively, irrefutable when recourse is had to the mother’s affidavit filed in respect of this application. The mother specifically refers to discussions she had with counsel during the course of the trial, swears that she “understood the risks” and gave specific instructions to her solicitors and counsel to pursue aspects of the case which were ultimately the subject of comment by me in the reasons (see, for example, [14], [15] and [17] of that affidavit).
A comparison might be drawn between what is there deposed to and what was said by the Full Court about whether submissions made before that Court were on instructions. But, no application has been made to cross-examine the mother; there is no evidence contradicting her evidence and I am unable to conclude that her affidavit evidence is inherently improbable.
Insofar as the husband’s application seeks orders for costs against “the lawyers”, it should be dismissed.
Does s 117AB Require an Order for Costs to be Made?
Section 117AB of the Act was repealed by the Family Law Legislation (Family Violence and Other Measures) Act 2011 (Cth) (“Amendment Act”). The repeal had effect in respect of “…proceedings instituted on or after...” 7 June 2012 (Amendment Act, Item 45 of Schedule 1). It is first necessary to consider, then, is whether an application for costs constitutes a discrete “proceedings” for the purposes of Item 45 such that s 117AB does not apply.
In my view, the husband’s application for costs is an “incidental proceeding” to, and therefore comprises part of, the substantive parenting proceedings (per the definition of “proceeding” in s 4 of the Act). Leaving aside issues of jurisdiction, the fact that an application for costs forms part of the proceeding to which it relates is reinforced, in my view, by r 19.08 of the Rules which states that an application for costs may be made “at any stage during a case” or by “...filing an Application in a Case…” (emphasis added). The emphasised aspects of r 19.08 reiterate, in my view, the fact that an application for costs is part of the broader proceedings (“case”) to which it relates.
In the instant case, although the application for costs was made after 7 June 2012, the parenting proceedings were commenced prior to that date and, as a result, s 117AB applies. Relevantly, the court must make an order that the mother pay some or all of the father’s costs if it is satisfied that the mother “… knowingly made a false allegation or statement in the proceedings.”
The husband’s submissions in this respect are curious to say the least. Despite making reference to s 117AB and to the authorities which have discussed its interpretation, the submissions on behalf of the husband do not refer specifically to any allegation or statement by the wife that is said to be “knowingly false” within the meaning of the section.
Reference is made in the written submissions on behalf of the husband to:
· Statements made by the child indicative of sexual impropriety which are said by the mother to be taken as literally true. Those statements were, as I found, increasingly bizarre. The relevant Department has found the allegations to be unsubstantiated and substantiated “emotional abuse” at the hands of the mother. It is not apparent to me how any of those conclusions, or the combination of them, is said to found a claim that the mother’s allegations were “knowingly false”;
· The fact that I made adverse credit findings in respect of the mother and her sister. Paragraph [38] of the trial reasons is specifically referred to. Again, no reference is made to any finding which is said to involve a finding that the wife “knowingly made” a false allegation. (Reference is also made in the husband’s written submissions to [39] of the trial reasons, but the findings there pertain to the wife’s sister. I cannot see how, without more, s 117AB can be said to be satisfied by reference to her statements);
· The mother’s involvement in the making of what might conveniently be called a “settlement proposal” to the husband. Although the submissions contain overtones of moral approbation and although I looked unfavourably on the events surrounding that “proposal”, I cannot see any fact or submission that founds a submission of knowing falsehood in respect of it;
· The quantity of (as I found it to be) “largely irrelevant” material filed by the wife. This, without more, is not relevant to any assertion as to the application of s 117AB;
· The mother’s failed attempt to exclude evidence from two experts and a failed argument pertaining to that evidence. Again, it is difficult to see how this is said to pertain to s 117AB.
In short, none of the matters raised by the husband are tied to any facts by which I could conclude that the mother knowingly made a false allegation.
To the extent that credit findings adverse to the mother generally are made by me or by reference to the matter first enumerated above, it is sufficient to observe that adverse credit findings are by no means the same things as findings of the making “knowingly” of false allegations or statements. (See for example, Charles & Charles [2007] FamCA 276; Prantage & Prantage [2013] FamCAFC 105; and Child Support Registrar & Kanavos (2010) 44 Fam LR 422 particularly at [24] and [26]).
Nothing contained within the arguments made on behalf of the husband persuades me that s 117AB requires me to make an order for costs as against the mother.
Section 117(2) – Justifying Circumstances?
The circumstances said by the husband to justify an order for costs appear to be those earlier outlined at [15] and [28] of these reasons. In essence, they are grounded in the wife’s conduct and her asserted lack of success.
The father contends, in effect, that “the mother persisted in bringing an application where it must have been obvious that her chances of success were slim at best”. The submission as presented involves, as it seems to me, an implicit premise that the proceedings were about whether an allegation of sexual impropriety by the father was established. As the trial reasons sought to point out, consistent with High Court authority the proceedings did not have that issue at their core; they were about the best interests of the parties’ three children where a central issue was whether they were at an unacceptable risk of sexual harm at the hands of their father.
Even if the inquiry was confined to the occurrence or non-occurrence of sexual impropriety, given the quintessentially confined nature of evidence in cases where medical or other physical evidence is absent, it would be difficult to conclude that the mother’s “chances of success were slim at best”. Where the inquiry is expressed to be, as it properly should be, what parenting orders are in the best interests of the children, it cannot be said that the mother ought to have concluded that her chances of obtaining the parenting orders she sought, were slim. I would not describe them as such.
There can be little doubt that the father has incurred significant legal expenses. The wife was represented by various solicitors during the course of the proceedings leading to trial. The husband was put to additional expense in answering voluminous material. It seems clear that, predominantly, the wife prepared her material herself. Much of it was irrelevant, but she is not legally trained. It can be said she was unsuccessful in the orders she sought.
Despite findings adverse to the mother’s credit, no finding was made that the mother acted with a dishonest intent. This has, I think, some bearing in this case. In the absence of findings that allegations are pursued without a genuine belief in them, it must, I think, be recognised that allegations of the type at the centre of this case bring considerably heightened levels of complexity, suspicion and animosity. As allegations unfold – and, as here, grow in their nature and frequency – so, too, the volume of sources of information and potential information grows and correspondence, affidavits and applications proliferate.
One party almost invariably asserts that they are seeking to protect their child from perverse sexual conduct; the other party almost invariably asserts they are seeking to protect the child from emotional abuse emanating from the ramification of the falsity of those allegations. It is difficult to assess that “… the conduct of [one party or the other] to the proceedings in relation to the proceedings…” should weigh significantly in abrogating the general rule provided for in s 117(1) of the Act.
While it is true that the Act does not delineate between parenting cases and financial cases in the application of s 117 (see, for example, I and I (No 2) (1995) 22 Fam LR 557), nevertheless attributing one parent of a child as having been “…wholly unsuccessful in the proceedings…” has a different resonance to what it might have where the percentage of a property pool is in issue; “success” is very difficult to measure when the best interests of a child caught in the middle of a horrific situation is the determinant of the orders.
Neither party here is impecunious, but neither is in a financial position such that they can litigate about their children without the financial cost being a very significant burden. True it is that the wife has, as is her right, prepared much of her own material and sought to reduce the cost of legal representation whereas the husband, as is his right, has remained represented throughout; in all likelihood his exposure to legal fees will be consequently greater.
In all of the circumstances of this case, I am unable to satisfy myself that an order should be made for the wife to pay the husband’s costs.
The Claim for Indemnity Costs
The husband’s claim for indemnity costs fails consequently.
I should record that even had I been persuaded that an order for costs should be made, nothing contained within the written submissions filed on behalf of the husband is persuasive of an order for indemnity costs being made.
Conclusion
The husband’s application for costs will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 10 September 2014.
Associate:
Date: 10 September 2014
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