Clancy & Alcott

Case [2021] FedCFamC1F 270

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Clancy & Alcott [2021] FedCFamC1F 270

File number(s): SYC 4960 of 2014
Judgment of: ALTOBELLI J
Date of judgment: 9 December 2021
Catchwords: FAMILY LAW – COSTS – Application by the mother for indemnity costs – Where the father was wholly unsuccessful in his contravention application – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) s 70NBA, s 117

Family Law Rules 2004 (Cth) Sch 3
Cases cited:

Bhatt & Acharya (Costs) [2017] FamCAFC 71

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 364

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

Lenova & Lenova (Costs) [2011] FamCAFC 141

Clancy & Alcott  [2021] FamCA 380

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Phillips & Hansford [2020] FamCAFC 28
Division: Division 1 First Instance
Number of paragraphs: 25
Date of last submission/s: 18 August 2021
Date of hearing: 18 August 2021
Place: Sydney (via videoconference)
Counsel for the Applicant: Mr Hill (direct brief)
Counsel for the Respondent: Ms Shea
Solicitor for the Respondent: Broun Abrahams Burreket
Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Law Specialist

ORDERS

SYC 4960 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CLANCY

Applicant
AND:

MS ALCOTT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

9 DECEMBER 2021

THE COURT ORDERS THAT:

1.Within 56 days of the date of these orders, the Applicant pay the Respondent’s costs fixed in the sum of $6,491.69.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

ALTOBELLI J:

INTRODUCTION

  1. These are reasons for judgment explain the order for costs made in this matter.

    BACKGROUND

  2. This case is about a child, X, born in 2013.  Her mother is Ms Alcott (“the mother”) and her father is Mr Clancy (“the father”). On 14 September 2020 Williams J made orders by consent that provided for the mother to have sole parental responsibility, for X…

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Clancy & Alcott [2021] FedCFamC1F 270
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[2021] FedCFamC1F 270
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CaseChat Overview and Summary

In the matter of Clancy & Alcott, the father, Mr Clancy, sought to contest the parenting orders made by the Family Court. The child, X, was born in 2013 to Mr Clancy and Ms Alcott, the mother. The case involved complex disputes over the enforcement of existing parenting orders and subsequent applications for variations and contraventions. The legal issues centred on whether the father's proceedings were frivolous or vexatious, and if so, whether costs should be awarded to the mother.

The court had to determine whether the father's application for contravention proceedings was frivolous or vexatious under section 117(2A)(e) of the Family Law Act 1975. The court considered the father's financial circumstances and whether they were a mitigating factor in the award of costs. The mother argued that the father's proceedings were doomed to fail, as the orders had already been varied by consent, making the contravention application redundant. The father contended that he acted in good faith and that the proceedings were not frivolous.

The court found that the father's contravention application was technically flawed as he had acquiesced to the variation of the orders by consent. The mother's submission that the father's case was doomed to fail was upheld, as the father should have reasonably known that he had no chance of success. The court acknowledged that the mother's financial circumstances were parlous and that she had incurred significant legal expenses due to the father's actions. While the court did not find the circumstances sufficient for an indemnity costs order, it did determine that an order for costs was warranted.

The court ordered that the father pay the mother's costs in the sum of $6,491.69, reflecting the itemised costs as per Schedule 3 of the Family Law Rules 2004. This decision highlights the importance of ensuring that proceedings are not brought without a reasonable prospect of success, particularly in family law matters where financial implications can be significant.

Orders

Orders of the court

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Background

Background to the litigation

These are reasons for judgment explain the order for costs made in this matter.BACKGROUND This case is about a child, X, born in 2013. Her mother is Ms Alcott (“the mother”) and her father is Mr Clancy (“the father”). On 14 September 2020 Williams J made orders by consent that provided for the mother to have sole parental responsibility, for X to live with her, and spend time with the father in accordance with that order. The Court notes that the father was represented by counsel at the time—indeed the same counsel who appeared for him on the present costs application. On 31 May 2021 I made orders dismissing the contravention application filed by the father on 29 December 2020 in which he alleged that the mother had contravened the orders of 14 September 2020. The matter was adjourned to 28 June 2021 to enable the father to obtain legal advice in relation to his appeal rights and to consider each parent’s proposal for an order varying the father’s time with X pursuant to the provisions of s 70NBA of the Family Law Act 1975 (Cth) (“the Act”). I noted on that occasion that the mother intended to make a costs application. On 12 July 2021 the father filed an Application in a Case seeking a stay of the orders that I made on 31 May 2021 pending his appeal to the Full Court. On 20 July I made procedural directions in relation to that application. The father filed an appeal but on 6 August 2021, Aldridge J sitting as the Full Court dismissed the father’s Application in an Appeal arising from the father’s failure to comply with time limits in relation to the appeal. This put an end to the appeal. It is clear from the judgment of the Full Court that the father’s appeal lacked merit. He was ordered to pay costs fixed in the sum of $2,700. On 18 August 2021 I made orders by consent pursuant to the provisions of s 70NBA varying the orders for X to spend time with her father. That effectively brought to an end the proceedings that between the parents, except in relation to the mother’s costs. The application for costs proceeded by way of oral submissions made on 18 August 2021. The father was represented by Mr Hill of counsel, the mother by Ms Shea of counsel, and the Independent Children’s Lawyer, Mr MacDiarmid, also appeared. I had the benefit of a case outline document from both parents. The Independent Children’s Lawyer did not wish to be heard on the issue of costs. The mother sought an order for indemnity costs in the sum of $19,980, or alternatively an order that costs be paid as agreed, or as assessed. She tendered documents to establish her financial circumstances which are clearly parlous. She has a low income and minimal savings. The amount sought as indemnity costs would simply reimburse the mother for the actual amount of costs incurred. The schedule of itemised costs pursuant to Sch 3 of the Family Law Rules 2004 (Cth) (marked as exhibit A4) amounts to $6,491.69. The father opposed the making of any costs order.LEGAL PRINCIPLES

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On behalf of the father it was submitted that he commenced the contravention application proceedings in good faith, as he was not spending time with his daughter in accordance with the orders. He contended that a variation to the order was inevitable and was in fact made by consent. The difference in the respective financial circumstances of the parents includes that the mother owns her home, but the father does not. In addition, he has had to bear the cost of supervised contact, and has borne the burden of an order for costs made by the Full Court.THE REASONS FOR JUDGMENT OF 31 MAY 2021 In my reasons for judgment delivered ex tempore on 31 May 2021 (Clancy & Alcott [2021] FamCA 380) I found at [4] that based on the father’s own evidence (including his affidavit) the mother did in fact comply strictly with the orders that he alleges she contravened. Moreover, the mother and father agreed to, in effect, vary the order and use the services of another supervised contact centre. The father’s reasons for bringing the application were quite understandable—he just wanted to spend time with his daughter. As I noted at [6] it is possible that he did not give much thought to the legal implications of what he was doing but, from a legal perspective, he had technically acquiesced to a change in the orders such that it would be extremely unfair for him to now bring contravention proceedings based on an order that had been varied by agreement. I was satisfied that he had acquiesced to the variation of the order both objectively, and subjectively. I therefore found that there was no prima facie case.THE SUBMISSIONS MADE On behalf of the mother it is submitted that, in these circumstances, the father’s case was doomed to fail. The technical way of expressing that proposition is that for the purposes of s 117(2A)(e) of the Act the father had been wholly unsuccessful in the proceedings. The submission is correct. This is not a matter of hindsight—the facts that I have identified above should reasonably have been apparent to the father, even without the benefit of legal representation. The mother’s submission is established. It is well-established law that even if the father were impecunious, that is not a reason per se not to make an order for costs against him (see, e.g., Lenova & Lenova (Costs) [2011] FamCAFC 141; Bhatt & Acharya (Costs) [2017] FamCAFC 71). When counsel for the mother submitted that the father’s case was “doomed to fail”, she was alluding to the principle that “the applicant, properly advised, should have known that he had no chance of success” (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401).DETERMINATION The father has put the mother to significant legal expense in the context of the case that should never have come to Court in the first place. In mitigation of that is the reality that the orders in question were ultimately varied by consent, and quite properly so. It was beyond the capacity of the parents to settle this issue without the Court’s intervention. Whether a contravention application was brought, or an application to vary the orders based on the changed circumstances, litigation would have occurred. This contraindicates indemnity costs. Nonetheless an order for costs is strongly indicated.

Ratio Decidendi

Legal Principle Established

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