Cochran and Lippman - [2010] FamCAFC 82

FAMILY COURT OF AUSTRALIA

COCHRAN & LIPPMAN

[2010] FamCAFC 82

FAMILY LAW – PARENTING PROCEEDINGS –APPEAL FROM A DECISION OF FEDERAL MAGISTRATE – COSTS – Not established that the late service of documents in the precincts of the Court denied the appellant father procedural fairness – Established that the Federal Magistrate was obliged, as a matter of procedural fairness, to apprise the father of the provisions of s 117 (2A) of the Family Law Act 1975 (Cth) in general terms – Court of the opinion that it is appropriate, in the circumstances, to re-exercise the discretion of Federal Magistrate – Costs order made with respect to proceedings in Court below in same terms as made by Federal Magistrate – Court grants the appellant father and the respondent mother a costs certificate pursuant to Federal Proceedings (Costs) Act 1981

Family Law Act 1975 (Cth) Section 117(2A) subsections (c), (f) & (g)
Federal Proceedings (Costs) Act 1981 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-5
Re F [2001] FLC 93-072
Rutherford and Rutherford (1991) FLC 92-255

APPELLANT:

Mr Cochran

RESPONDENT:

Ms Lippman

FILE NUMBER:

PAC

2290

2009

APPEAL NUMBER:

149

2009

DATE DELIVERED:

23 April 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

9 April 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 November 2009

LOWER COURT MNC:

[2009] FMCAfam 1396

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self Represented

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

Mr Antony Benetatos

SOLICITOR FOR THE RESPONDENT:

Benetatos White Solicitors

Orders

That the father’s appeal against the order for costs made in the Federal Magistrates Court on 18 November 2009 be allowed.
That within three months of this date the appellant father pay by way of contribution to the respondent mother’s costs of the proceedings before the Federal Magistrates Court the sum of one thousand dollars ($1000) plus GST (a total of one thousand one hundred dollars $1100).
That the Court grants to the appellant father a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 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 father in respect of the costs incurred by the appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 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 respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Cochran & Lippman is approved pursuant to s 121(9) (g) of the Family Law Act 1975 (Cth).

THE APPELLATE COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 149 of 2009
File Number: PAC 2290 of 2009

Mr Cochran

Appellant

And

Ms Lippman

Respondent

REASONS FOR JUDGMENT

By Notice of Appeal filed on 16 December 2009 Mr Cochran (“the father”) appealed against an order for costs made against him by Federal Magistrate Dunkley in parenting proceedings between himself and Ms Lippman (“the mother”) on 18 November 2009.
The order of the Federal Magistrate against which the father appealed obliged him to pay $1100 towards the mother’s costs within three months of the date of his Honour’s order.
The mother resisted the husband’s appeal and sought to maintain the orders of the Federal Magistrate.
In his Notice of Appeal the father indicated that he was seeking leave to appeal the learned Federal Magistrate’s order for costs. Whether or not leave to appeal is required will have little impact on the fate of the father’s complaints. As the learned Federal Magistrate’s order was final, a grant of leave to appeal is unnecessary. (See Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, and Rutherford and Rutherford (1991) FLC 92-255).

Background

On 22 September 2009, the father filed an application seeking parenting orders with respect to the two children of the relationship between himself and the mother.
That application was returnable before the Federal Magistrates Court on 18 November 2009.
On 18 November 2009, consent orders were submitted to the learned Federal Magistrate who made orders in those terms. The mother then successfully applied for an order for costs of the proceedings.

The Reasons for Judgment of the Federal Magistrate.

The learned Federal Magistrate commenced his consideration of the mother’s costs application by referring to the application of the father to which reference has been made, and a response to such application which was filed in court on behalf of the mother on 18 November 2009, together with an affidavit sworn by the mother’s solicitor earlier that day.
His Honour recorded that the parties had “settled the issue in the application in a case [in relation to parenting matters] in the terms as sought in the application”.
Reference was then made to the father’s refusal to accept a copy of the mother’s solicitor’s affidavit, and the basis upon which he sought to justify having done so. As is not in doubt, the affidavit did no more than annex documentation which passed between the father and the mother’s solicitor.
The learned Federal Magistrate recorded that the orders which he had earlier made in the parenting proceedings were “in identical terms to paragraph 1.1 of the offer made on 7 October 2009 contained in the letter to Mr [Cochran] of that date”. The costs sought by the mother, $1000 plus GST of $100, were held to be “less than the scale provided for by the Federal Magistrates Rules”, which would have provided significantly in excess of that sum.
His Honour concluded his reasons by recording:
7.Although Mr [Cochran] obtained the orders he sought, those orders were on offer to him since the letter of 7 October 2009. Mr [Cochran] has consequently caused unnecessary legal expense to the mother in having the case heard today. Terms of Settlement could have been filed shortly after 7 October 2009 without the need for the mother to have prepared or filed a Response and without her having to be represented today. Considering s.117(2A) (c) and (f) he should pay the wife’s costs.

The Grounds of Appeal

As is clear from both the grounds upon which the father sought leave to appeal, the major thrust of the complaints by which the father sought to enliven appellate intervention related to the service of the mother’s solicitor’s affidavit upon him in the precincts of the court, and an asserted consequential denial of procedural fairness to him arising out of the service of the affidavit upon him. Integral to the latter complaint was the learned Federal Magistrate’s asserted failure to comply with the obligations asserted to have been imposed upon him by the decision of the Full Court in Re F [2001] FLC 93-072.
As the transcript of the hearing of the father’s appeal would confirm, the Court repeatedly sought to explain to him that acceptance or rejection of the mother’s solicitor’s affidavit was something of a “red herring” in the proceedings before the learned Federal Magistrate. That was because, quite independently of the affidavit, the mother’s solicitor could have tendered and relied upon the correspondence which undoubtedly passed between himself and the father in support of the mother’s application for costs. The affidavit did no more than facilitate that process. Had he read the affidavit, the father would have had clear advance notice of the basis of the mother’s claim for costs.
As the Court also endeavoured to explain to the father, the costs issue fell to be determined by reference to a discreet number of documents, the identity and authenticity of which were not in issue. All of those documents were either before the Court independently of the mother’s solicitor’s affidavit or, in the case of the correspondence and draft Terms of Settlement annexed to it, could properly have been tendered before his Honour without the need for any affidavit by the mother’s solicitor. The contents of all of these documents were well known to the father. He had received, or was the author of them all.
Whilst there is considerable disagreement as to the significance appropriately attached to the documentation itself, there is no doubt as to the relief the father sought in his initiating application filed 22 September 2009 which was returnable on 18 November 2009, or the orders which were in fact made on 18 November 2009 in the parenting proceedings. Nor is there doubt as to the correspondence which passed between the father and the mother’s solicitor on 7 October 2009 (letter from mother’s solicitor to father attaching draft Terms of Settlement), 22 October 2009 (letter from father to mother’s solicitor), 27 October 2009 (letter from mother’s solicitor to father), 29 October 2009 (letter from father to mother’s solicitor), 2 November 2009 (letter from mother’s solicitor to father attaching Terms of Settlement), and 9 November 2009 (letter from mother’s solicitor to father).
With the benefit of hindsight, although the father was clearly familiar with the documents, it may have been preferable for his Honour to have pointed out to the father that, even if the affidavit had been improperly served upon him, and thus could not be relied upon, the annexures to the affidavit, being correspondence, which undoubtedly passed between the father and the mother’s solicitor, could be tendered in support of the mother’s costs application.
As the transcript would confirm, during the course of the father’s submissions, the Court raised with him the reality that his Grounds of Appeal, and Summary of Argument focused almost exclusively upon the learned Federal Magistrate’s asserted erroneous reliance upon the affidavit of the mother’s solicitor and denial of a “second opportunity” to accept the affidavit from the mother’s solicitor. It is readily apparent that, having written, or seen all of the correspondence prior to 18 November, the affidavit was in reality a “second opportunity” to consider that correspondence.
Having read the transcript of the proceedings before the learned Federal Magistrate, and conscious of the fact that the father was unrepresented, the Court raised with him two matters which, although not expressly agitated in any of his Grounds of Appeal or Summary of Argument, were consistent with the general thrust of the father’s complaints.
The two matters were whether the learned Federal Magistrate adequately explained to the father the statutory provisions governing the mother’s costs application, and whether the learned Federal Magistrate’s conclusion that, although the father had obtained the orders he sought, “those orders were on offer to him since the letter of 7 October 2009” from the mother’s solicitor was erroneous.
In fairness to the father, albeit not specifically raised in his Grounds of Appeal, in his written Summary of Argument the father did complain that the learned Federal Magistrate “failed to explain to me as a self represented litigant any procedures relevant to the litigation for costs”.
The submission by the father in his written Summary of Argument, that the learned Federal Magistrate had made findings which were not open to him on the evidence before him and were “contrary to the same” [evidence] would extend to the second matter which the Court raised.
Albeit reluctantly, and in circumstances where, apparently not understanding or accepting that the Court was raising matters which may have been to his advantage, the father appeared to adopt each of these propositions as part of his challenge to the learned Federal Magistrate’s order for costs.
Fairly, the solicitor for the mother raised only a formal objection to the Court in effect identifying and raising for the father challenges which he had not expressly raised.
Albeit an application for summary judgment pursuant to the High Court Rules, the judgment of Kirby J in Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 is instructive for present purposes. Adjourning the father’s appeal to allow him to amend his pleading would have incurred expense out of all proportion to the sum at stake in the appeal. Sensibly, the mother’s solicitor did not seek an adjournment to address the challenges to which reference has been made. The father’s appeal thus proceeded in reliance upon his pleaded grounds, and the two additional “grounds” referred to above.
It is convenient to deal first with the father’s complaint that the learned Federal Magistrate “failed to explain to me as a self represented litigant any procedures relevant to the litigation for costs”.
The transcript of the proceedings before his Honour was unsurprisingly brief. As the transcript reveals, through no-one’s fault, a significant focus of attention before his Honour during the time the proceedings occupied him, related to whether or not the mother’s solicitor could serve his affidavit on the father on court premises.
In terms of costs, the discussion was brief and it is appropriate to record it in full:
HIS HONOUR: Good. Thank you. He makes an application for costs. What’s the quantification?
MR BENATAS [sic]: $1100, Your Honour. It involves an hour’s preparation for the affidavit in response.
HIS HONOUR: What do you want to say about costs?
MR [COCHRAN]: I think the costs are very excessive, your Honour, for preparation of documents, for starters.
HIS HONOUR: Thank you. Anything else you want to put?
MR [COCHRAN]: Yes, your Honour. There was correspondence that I also had that went backwards and forwards between Mr Benatas [sic] and myself, and on several – several of these correspondence letters indicated to him that I would like the State of New South Wales included in express terms.
HIS HONOUR: Yes.
MR [COCHRAN]: And on each occasion, he’s written back to me and disregarded it. And said, “No, no. We don’t want that.”
HIS HONOUR: Thank you. Anything else?
MR [COCHRAN]: No. That’s it for now, your Honour.
HIS HONOUR: Thank you. I make orders in accordance with the document, which is entitled Terms of Settlement, which I marked as exhibit A, initial and date today. There is a couple of amendments, can you give me a typed script, Mr Benatas [sic]?
MR BENATAS: Yes. I can, your Honour.
HIS HONOUR: The mother’s solicitor is to provide a typed script within 14 days.
Yes?
MR [COCHRAN]: Your Honour, may I also add that I wasn’t quite clear on what Mr Benatas [sic] was saying in his correspondence and I did write back to indicate to him that – I said, “Look, I’m not sure what you’re asking me or what you’re trying to indicate here.”
HIS HONOUR: Yes.
MR [COCHRAN]: I did as for a clearer explanation. Therefore, that’s why I’m here before you today to seek judicial interpretation on the matter.
HIS HONOUR: Thank you.
JUDGMENT DELIVERED.
It is clear that the judgment then delivered was the judgment for costs which gives rise to the application for leave to appeal.
The transcript speaks for itself. The Court accepts that it was unnecessary for his Honour to have provided the father in this case with other than a brief explanation of the possible significance of the correspondence attached to the mother’s solicitor’s affidavit. Having read the transcript, the Court can readily appreciate how the matter progressed in the way it did. With all due respect to the learned Federal Magistrate, some indication of the possible basis upon which a costs order could be, and subsequently was, made was required, notwithstanding that, as his submissions clearly reveal, the father appreciated that the correspondence attached to the mother’s solicitor’s affidavit was relevant to the issue. Indeed, the only submissions made by the father with respect to his potential liability for costs related to the correspondence.
In Re F [2001] FLC 93-072 the Full Court (Nicholson CJ, Coleman & O’Ryan JJ) said that whilst it was “usually undesirable” for the judicial officer to give legal advice to an unrepresented litigant, particularly when such advice was “of a strategic nature”, there could be circumstances where the requirement to conduct a fair trial required a judicial officer to give assistance of a legal nature to a litigant in person, even though such assistance may risk compromising the appearance of impartiality and neutrality from the perspective of the other side.
The Full Court further concluded that the imperative to do substantive justice between parties required the Court to properly understand the litigant in person’s position within the litigation. The Full Court accepted that where the interests of justice and circumstances of the case required it, the judicial officer may [emphasis added] draw attention to the law applied by the Court in determining issues before it.
In the circumstances of this case, and notwithstanding that the brief submissions made by the father to him implied that the father had some appreciation of the matters that were relevant to the determination of costs applications, the Court reluctantly concludes that the learned Federal Magistrate was obliged, as a matter of procedural fairness, if only in general terms, to apprise the father of the provisions of section 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) which were relevant. As is not in doubt, the only provisions of section 117(2A) which could have assumed significance were section 117(2A) (c), which referred to “the conduct of the parties to the proceedings in relation to the proceedings”, and section 117(2A) (f), which referred to offers of settlement, or possibly section 117(2A) (g). If a narrow interpretation of s 117 (2A) (f) were adopted.
Not without misgivings, the Court is persuaded that this challenge has been made out. So doing implies no criticism of the learned Federal Magistrate, who dealt with the matter in the course of an undoubtedly onerous list of cases in circumstances where, by his focus on the affidavit of the mother’s solicitor, rather than the annexures to it, of which he was well aware, the father materially contributed to his own misfortunes.
Although it is perhaps strictly unnecessary to deal with the father’s complaint that the learned Federal Magistrate erred in concluding as he did that the orders made on 18 November 2009 had been “on offer to him since the letter of 7 October 2009”, for completeness, the Court will consider that challenge.
The commencing point for that analysis is the relief sought by the father in the Application filed 22 September 2009 which gave rise to a listing before the Federal Magistrates Court on 18 November 2009.
It is appropriate to record fully the relief there sought by the father which provided:
2.That the Mother or Father of the said Children [L Lippman] and [A Cochran] are not to take the children interstate or overseas.
3.In the event that either party wishes to do so, that 2 months written formal notice be given to the other party requesting consent and that if consent is formally granted, that a full written itinerary be provided to the other party and will include places of accommodation, planned attractions and activities along with modes of travel to and from the destination no less than 1 month prior to the holiday.
4.That the Applicant Father has access to the children from midday Christmas day until midday boxing day.
5.That the father be able to spend time with the children for a period of no less than 4 hours for their birthdays in 2010.

On 7 October 2009 the mother’s solicitor wrote to the father and, relevantly for present purposes advised:
Our client agrees to a proposal on an interim basis that two months notice be given prior to the children being taken on an overseas or interstate holiday and the proposal for you to have time with the children from 12:00noon on Christmas Day until 12:00noon on Boxing Day.
Our client also agrees to the proposal that you spend four hours with the children on their birthdays in 2010.
We have consequently prepared Terms of Settlement in relation to these issues and ask you to sign and return these Terms to us so they may be filed with the Court thereby avoiding the need for proceeding with the hearing of your Application in a Case.
To appreciate the significance of subsequent correspondence, it is necessary to set out in full the contents of the proposed Terms of Settlement which provided:
1.In the event that either party wishes to take the children on an interstate trip or out of Australia at any time then they shall provide the other party with written notice of such intention at least two months prior to the proposed date for such trip and in the event that the other party consents to the proposed trip, the party planning the trip shall provide at least one month prior to the scheduled departure for such trip details of the proposed itinerary, places of accommodation and activities and modes of travel to and from the proposed destinations.
2.The children shall spend time with the father from 12:00noon on 25 December 2009 to 12:00noon on 26 December 2009.
3.The children shall spend time with the father on each of the children’s birthdays for a period of four hours in 2010 on those days where the children are not otherwise spending time with the father and in the event that either of the children’s birthdays fall on a day when the children are not spending time with the mother then the children shall spend four hours on such days with the mother.
It is readily apparent that, although not necessarily worded in precisely the same manner as the father’s application sought, and with a one month period of prior notice in lieu of the two months referred to in the orders sought by him, the Terms of Settlement substantially contained everything which the father had sought in his application.
On 22 October 2009, the father wrote to the mother’s solicitor, acknowledging receipt of his “correspondence dated 7 October 2009”, and advising that he had “no problems with the agreement as it stands”.
However, the father went on to say:
After consideration, I would also like to add further clauses to that proposed agreement and have them inserted as follows;
1(a) That any proposed holidays by the Mother Interstate, overseas or within the state of New South Wales are to be taken at a time that does not interrupt the Father’s normal scheduled access times or the children’s school term.
1(b) In the event that the proposed holiday arrangements will interrupt with the Father’s normal scheduled access or the children’s school term, the Mother must obtain the Father’s written consent or it may be an agreement made between the parties, but must be in writing.
1(c) In the event that the parties do make an agreement in writing, the Mother must offer the Father make up time to compensate for the loss of scheduled access time.
1(d) Before making any holiday arrangements the Mother must first confer with the Father before notifying the children about the proposed holiday.
The father concluded his letter by saying:
Please advise if this proposal is acceptable to your client. If not I shall seek an amendment to the existing interim orders application to make provision for this arrangement on 18 November 2009.
It is readily apparent that, as his letter clearly acknowledged, the father sought “further” orders which were not included in his original application, or the draft consent orders forwarded by the mother’s solicitor on 7 October 2009 reflecting the relief there sought.
On 27 October 2009 the mother’s solicitor replied to the father’s solicitor of 22 October 2009. It is not necessary for present purposes to refer to the contents of that letter, other than to the portions which provided:
In relation to your paragraph 1(b), we suggest this is covered in the same way that 1(a) is covered as detailed above.
In relation to paragraph 1(c), we have added an additional clause to the proposed Terms of Settlement to address this issue.
Similarly, in relation to your paragraph 1(d), we have also added an additional clause to the proposed Terms of Settlement to address this issue.
We therefore now enclose amended Terms of Settlement for your consideration and ask you to sign and return the document to us so that the same may be executed by our client.
It is apparent that, other than in one minor respect, the orders which were made by consent on 18 November 2009 reflected the amended Terms of Settlement forwarded by the mother’s solicitor on 27 October 2009.
The one amendment subsequently made to those terms, extending time to be spent with the father from 5pm Saturday 26 December 2009 to 5pm Sunday 27 December 2009, was no more than a reflection of the reality that so doing accorded with a weekend period of time the father was due to be spending with the children in any event.
As was submitted by the mother’s solicitor, the chain of correspondence reveals that on 7 October 2009 the mother agreed to the relief sought by the father in his initiating application and had her solicitor prepare draft Terms of Settlement to reflect such agreement and again, in the light of further matters raised by the father, on 27 October 2009 recorded her agreement to such requests, and again had her attorney draft Terms of Settlement reflecting such agreement.
On 29 October 2009 the father again wrote to the mother’s solicitor. Having commenced his letter by saying “I am writing to advise that I have no problems with the agreement as it stands” the father went on to say “However after consideration, I am not 100% in [sic] exactly what you are asking of me to agree to”.
The father then raised a specific proposal in the following terms:
…
1(a) That any proposed holidays by the Mother Interstate, overseas or within the state of New South Wales are to be taken at a time that does not interrupt the Father’s normal scheduled access times or the children’s school term.
After airing other grievances, the father went on to say:
…
In regards to all amended proposals and in particular 1(b) it is a MUST that all consent given by me must be in writing otherwise this leaves the corridor open for your client to still plan a holiday discreetly without my knowledge and further in the event that I wish to pursue a contravention order for that breach, will be unable to as there was nothing set down in writing, therefore affording no proof of consent.
On 2 November 2009, the mother’s solicitor wrote to the father saying:
…Whilst we stand by the reasoning set out in our previous letter to you, in order to resolve this matter we now enclose further amended Terms of Settlement incorporating an additional clause (1.3) which confirms that neither party is to take the children away for a period of time that includes the other party’s time with the children or the children’s schooling except by written consent of the other party.
We also note we have amended 1.1 to provide that the consent is to be in writing.
We note this addresses all issues that have been raised by you and we ask you to sign the Terms of Settlement and return the same to us for execution on behalf of our client and filing.
The position was accordingly that, on 2 November 2009, the mother agreed to the second set of further amendments sought by the father, which were not included in his originating application, and had her solicitor prepare Terms of Settlement reflecting such agreement.
It is apparent from the further draft Terms of Settlement that, save for the alteration of 26-27 December 2009, the draft then forwarded was identical with Terms of Settlement ultimately presented to the learned Federal Magistrate on 18 November 2009.
Notwithstanding the course of correspondence to that point, the father wrote to the mother’s solicitor on 9 November 2009. Whatever was intended to be conveyed by the letter, and the Court is unclear about it, two things emerge. The first is that the father did not suggest further amendments. The second is that nothing raised by the father in his letter found expression in the Terms of Settlement which were submitted to the learned Federal Magistrate on 18 November 2009.
To the extent that the father complained that the mother’s solicitor did not respond to his letter prior to 18 November 2009, two observations are relevant. The first is that the letter was clearly received in the solicitor’s office on 16 November 2009, two days prior to the father’s application being returnable before the Federal Magistrates Court. The second, and perhaps more significant issue is that, in the light of the history of attempts by the mother to accommodate the father’s “requests”, and absence of any clear indication of what, if anything, the father was unhappy with in the third set of draft Terms of Settlement, further correspondence or communication would have been unlikely to be productive.
Against the background of evidence which was properly before the learned Federal Magistrate, whether that be via the affidavit of the mother’s solicitor, or if the affidavit had been rejected, by way of tender of uncontroversial correspondence, the learned Federal Magistrate was entitled to find as he did that, whilst the father had “obtained the orders he sought, those orders were on offer to him since the letter of 7 October 2009”.
It was open to his Honour to find in the circumstances that the father had “caused unnecessary legal expense to the mother in having the case heard” on 18 November 2009 as “Terms of Settlement could have been filed shortly after 7 October 2009 without the need for the mother to have prepared or filed a Response and without her having to be represented today”.
The Court accordingly does not accept that this challenge has been established.

Consequences of allowing appeal

It was common ground that, if this Court allowed the father’s appeal, the only responsible course in the circumstances was for this Court to re-exercise his Honour’s discretion. To remit a matter of this scope for rehearing by another Federal Magistrate would be out of all proportion to the issues raised.
There having been no suggestion during the course of argument in the application for leave to appeal that there was any correspondence relevant to the costs issue which had not been before the learned Federal Magistrate, the Court did not invite further evidence (see Allesch v Maunz (2000) 203 CLR 172).
As is not in doubt, the general provision of section 117 of the Act is that each party pay his or her own costs unless the Court is of the opinion that circumstances justify the making of a costs order. Section 117(2A) of the Act requires the Court to have regard to the matters therein referred to, to the extent that they are relevant, when considering costs applications.
The Court has no real knowledge of the financial circumstances of the parties, and it has virtually no evidence in that regard. The Court notes that the father says that he is a university student. The Court assumes, perhaps unfairly to the mother, that her financial circumstances are superior to those of the father. There is no suggestion that the mother is affluent. In the circumstances of a case of this kind, if the mother establishes an entitlement to a costs order, the financial circumstances of neither the father nor the mother would disincline the Court to exercise its discretion to make a costs order. Neither party is in receipt of Legal Aid.
The most relevant aspects of section 117(2A) are subsection (c), which relevantly provides:
(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
And subsection (f) which provides:
(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;
If the latter subsection be read narrowly, subsection (g) would become relevant.
Howsoever viewed, as is not in doubt, and as the submissions of the father in opposing any order for costs and the solicitor for the mother in seeking such order confirm, the focus of enquiry in this case is whether the father’s conduct unreasonably caused the mother to incur expense.
Without fully re-stating the matters, of relevant which were set out in some detail above, when considering one of the father’s complaints, a number of matters emerged clearly from the course which negotiations took in the parenting proceedings.
In summary, they were as follows:
1.On 7 October 2009 the mother communicated her agreement to the orders sought by the father in his application filed 22 September 2009, and had her solicitor prepare Terms of Settlement to reflect such agreement.
2.On 22 October 2009 whilst acknowledging that he had “no problems” with the draft Terms of Settlement submitted to him by the mother’s solicitor on 7 October 2009, the father raised four additional matters, none of which had been sought in his originating application.
3.On 27 October 2009 the mother communicated her agreement to the additional matters raised by the father on 22 October 2009 and had her solicitors prepare Terms of Settlement providing for those additional matters.
4.On 29 October 2009 the father, whilst acknowledging that he had “no problems” with the second set of draft Terms of Settlement submitted to him, raised further additional matters.
5.On 2 November 2009, the mother communicated her agreement to the further additional matters raised by the father which had also not been included in his originating application and had her solicitor submit further draft Terms of Settlement reflecting such agreement.
The orders ultimately made by the learned Federal Magistrate were more generous to the father than his own originating application had sought. On two occasions, whilst agreeing with the draft Terms of Settlement submitted to him, the father sought additional matters. On each such occasion, the mother readily agreed to them and had her solicitor prepare further draft Terms of Settlement to provide for them. In all, the mother incurred costs in having her solicitor prepare three sets of draft terms in order to accommodate the father’s requests.
The correspondence between the father and the mother’s solicitor leaves little room for doubt that, had the father sought in his originating application all of the matters which he subsequently raised, and to which the mother readily agreed, when he later did, none of the correspondence, and consequential expense, would have been occasioned to the mother. The mother could have elected not to incur the expense of obtaining a solicitor, and simply appeared at Court on 18 November 2009 to consent to the father’s application. The mother’s election to retain a solicitor, and readily agree to the father’s further requirements materially contributed to his obtaining the orders which were made on 18 November 2009. These matters are in the Court’s view sufficient to constitute circumstances justifying a costs order.
Beyond reiterating that he considered the sum of $1100 ($100 which represents GST) to be excessive, nothing put by the father in submissions provides any basis for making a costs order other than in the sum sought by the mother’s solicitor. Indeed, the probabilities being that an order for costs as agreed or assessed would produce a materially greater liability for the father than the sum of $1100 imposes, it could be said that the Court is acting in the father’s own best interest in imposing that sum.

Costs of the Appeal

The appeal having been successful in circumstances which fall within the ambit of the Federal Proceedings (Costs) Act 1981, each party will have a costs certificate.

I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Justice Coleman

Associate:

Date: 23 April 2010