Corley & Petrie (No 2)
[2021] FCCA 1259
•10 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Corley & Petrie (No 2) [2021] FCCA 1259
File number(s): MLC 5458 of 2016 Judgment of: HER HONOUR JUDGE C. E. KIRTON QC Date of judgment: 10 June 2021 Catchwords: FAMILY LAW – Costs – Mother’s application for indemnity costs – consideration of whether case of an ‘exceptional kind’ to award costs on an indemnity basis – application of principles in Kohan and Kohan (1993) FLC 92-340 – doctrine of precedent – no exceptional circumstances justifying departure from the ordinary rule – costs awarded on a party/party basis. Legislation: Family Law Act 1975 (Cth) ss 13C, 117
Family Law Rules 2004 (Cth) ch 1, pt 21, divs 21.2, 21.3, ch 19, pts 19.4, 19.5
Federal Circuit Court Rules 2001 (Cth) r 21.02
Cases cited: Colgate-Palmolive v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225
D & D (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Danks & McCabe [2017] FamCAFC 41; (2017) FLC 93-767
Elmi & Munro (2019) FLC 93-912
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish [2005] FamCA 158; (2005) 33 Fam LR 123
Jensen & Jensen [1982] FamCA 57; (1982) FLC 91-263
Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340
Limousin & Limousin (Costs) [2007] FamCA 1178; [2007] 38 FamLR 478
Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664; (2015) 54 Fam LR 1
Munday v Bowman (1997) FLC 92-784
[2014] FamCAFC 207; (2014) FLC 93-612
Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311
Stasiuk & Guild [2021] FamCAFC 62
Yunghanns v Yunghanns [2000] FamCA 681; (2000) FLC 93-029
Number of paragraphs: 180 Date of last submission/s: 29 September 2020 Date of hearing: 3 August 2020 Place: Melbourne Counsel for the Applicant: Mr Grant For the Respondent: The Respondent appeared in person ORDERS
MLC 5458 of 2016 BETWEEN: MR CORLEY
Applicant
AND: MS PETRIE
Respondent
ORDER MADE BY:
HER HONOUR JUDGE C. E. KIRTON QC
DATE OF ORDER:
10 JUNE 2021
THE COURT ORDERS THAT:
1.The Applicant Father (Father) pay the Respondent Mother’s (Mother) party/party costs of the proceedings, including the Mother’s costs reserved on 27 April 2017 and 30 October 2017, with the proceedings to be deemed to have commenced with the filing of the Father’s Initiating Application on 16 June 2016 (Costs).
2.In the event of the parties failing to agree upon the quantum of the Costs by 4.00 pm on 8 July 2021, pursuant to r.21.02(2)(c) of the Federal Circuit Court Rules 2001 (Cth), the Costs be referred for taxation on a party/party basis under Chapter 19 of the Family Law Rules 2004 (Cth).
3.For the purposes of Order 2 herein, the Mother shall file and serve by no later than 4.00 pm on 22 July 2021, an itemised Bill of Costs setting out the professional fees and charges she seeks to be paid by the Father by way of Costs pursuant to this order (Bill of Costs).
4.Within 21 days of receipt of the Bill of Costs, the Father shall file and serve a response to the Bill of Costs, setting out all items in the Bill of Costs to which he objects (whether in its entirety or in respect of quantum). Where the objection relates to quantum, the Father shall specify the amount which he seeks to pay in relation to that item.
5.The matter be referred to the Costs Registrar for Assessment not before 12 August 2021.
6.In the event the Father fails to file and serve a response in accordance with Order 4 herein, the Father is deemed to hold no objection to the Bill of Costs.
7.The Response to an Application in a Case filed by the Father on 7 August 2020 be dismissed.
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 under the pseudonym Corley & Petrie (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
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REASONS FOR JUDGMENT
HER HONOUR JUDGE C. E. KIRTON QC:
INTRODUCTION
This is an application by the Respondent Mother (Mother) for costs arising as a result of the Initiating Application filed by the Applicant Father (Father) on 16 June 2016 seeking interim and final parenting orders in relation to the child X, born in 2015 (X). The Mother seeks costs of the proceeding to be paid by the Father on an indemnity basis or otherwise as ordered by the Court.
Reasons for Judgment were delivered on 16 October 2019 (Judgment) after a trial that proceeded over six days on 30 April, 1 May, 20, 21, 22 and 23 August 2018 (Final Hearing). Final Orders were made on 16 October 2019 (Final Orders). On 7 November 2019 the Mother filed an Application in a Case seeking a costs order against the Father.
ISSUES FOR DETERMINATION
The issues for determination in these proceedings are:
(a) Whether there are circumstances justifying making a costs order against the Father in favour of the Mother; and
(b) If a costs order is to be made, whether those costs should be ordered on the usual party/party basis, on a lawyer and client basis or on an indemnity basis.SYNOPSIS
I have determined that:
(a) There are circumstances justifying making a costs order against the Father in favour of the Mother;
(b) The Father pay the Mother’s party/party costs of the proceedings, including the Mother’s costs reserved on 27 April 2017 and 30 October 2017, with the proceedings to be deemed to have commenced with the filing of the Father’s Initiating Application on 16 June 2016; and
(c) In the event of the parties failing to agree upon the quantum of the costs by 4.00 pm on 8 July 2021, pursuant to r.21.02(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules), the Costs be referred for taxation on a party/party basis under Chapter 19 of the Family Law Rules 2004 (Cth) (Family Law Rules).
BACKGROUND
The history of the parties’ relationship and the circumstances leading to their separation was set out in paragraphs 4 to 26 of the Judgment. I will therefore not repeat those details, save where they are relevant in these Reasons for Judgment.
PROCEDURAL HISTORY
The procedural history of this matter was set out in detail in paragraphs 27 to 62 of the Judgment. It may be relevantly summarised and expanded upon for the current costs application as follows.
The Father commenced this proceeding by filing an Initiating Application, an Affidavit and a Notice of Risk on 16 June 2016, seeking interim and final parenting orders in relation to X. At that time X was 7 and a half months old. At the time the Father commenced this proceeding he was represented by Bentleys, Barristers & Solicitors (Bentleys).
On 12 July 2016 Marshalls & Dent filed a Notice of Address for Service on behalf of the Mother. On 28 July 2016 the Mother filed a Response to Initiating Application, an Affidavit, a Financial Statement and a Notice of Risk. In the Response to Initiating Application the Mother sought interim and final parenting and property orders.
On the first return date of the proceeding on 2 August 2016 before Judge Bender, the Father was represented by Mr Goddard of Counsel and the Mother by Ms Paterson of Counsel.[1] On 2 August 2016 the proceeding was adjourned to 9 November 2016 for Mention.
[1] Judgment, [29].
On 1 September 2016 the Father himself filed another document described as an ‘Initiating Application’ which indicated that he was self-represented (Second Initiating Application).[2] When cross-examined by Counsel for the Mother at the Final Hearing the Father confirmed that at the time he filed the Second Initiating Application he was no longer represented.[3] On 22 September 2016 the Father filed a Notice of Address for Service, which confirmed that he was self-represented. On 10 October 2016 Bentleys filed a Notice of Intention to Withdraw as Lawyer.
[2] Judgment, [30].
[3] Transcript (30.4.18) P66:L5-25.
On 9 November 2016 the proceeding came before Judge Bender for Mention.[4] On that occasion the Father was represented by Mr Goddard of Counsel and the Mother was represented by Ms Byrnes of Counsel.
[4] Judgment, [33].
On 28 November 2016 the parties attended a Conciliation Conference conducted by a Registrar of this Court, as a result of which the Court made final property orders by consent. The Father was self-represented at the Conciliation Conference and the Mother was represented by Ms Byrnes of Counsel. The Registrar recorded on the Conciliation Conference Report: ‘Notation: The husband was advised by the Registrar to obtain independent legal advice. He chose not to do so. He has had advice in the past.’
The final consent property orders included a provision that the Father was responsible for the payment of the P Bank Debt.[5]
[5] Judgment, [34]-[35].
On 22 December 2016 Marshalls & Dent filed a Notice of Intention to Withdraw and a Notice of Withdrawal as Lawyer. The Mother then became self-represented.
On 24 January 2017 the Father filed a further Notice of Address for Service, again confirming that he was self-represented.
On 23 March 2017 Bentleys filed a Notice of Withdrawal as Lawyer.
On 30 March 2017 the Mother filed an Application-Contravention for the Father’s contravention of the Orders made on 28 November 2016 (Mother’s Contravention Application). The Mother’s Contravention Application alleged that the Father had not paid the P Bank Debt, of which the amount of $1,309.55 remained outstanding to P Bank. The Mother’s Contravention Application was made returnable on 20 April 2017.
On 20 April 2017 the Mother’s Contravention Application was listed before Judge Bender.[6] On that occasion the Father was represented by Mr Turner of Counsel and the Mother by Ms Byrnes of Counsel. The Court Ordered that the ‘parties’ costs of today, including with respect to the Contravention Application filed 30 March 2017 be reserved to the final hearing’.[7]
[6] Judgment, [39]-[41]
[7] Interim Order 20.4.17, Order 14.
On 20 August 2017 the Father filed an Application-Contravention (Father’s Contravention Application) which was made returnable on 30 October 2017. On 30 October 2017 the Father’s Contravention Application was listed before Judge Bender. The Father was self-represented and the Mother was represented by Ms Harris of Counsel. The Father’s Contravention Application was dismissed and the Court ordered that the ‘Mother’s costs of this day be reserved’.[8]
[8] Interim Order 30.10.17, Order 3; Judgment, [42]-[43].
On 19 November 2017 the Mother filed a Notice of Address for Service which confirmed that she was again self-represented.
The parties appeared before Judge Williams (as her Honour then was) on 13 March 2018. On that occasion both the Mother and the Father were self-represented. Her Honour Ordered that the parties attend family dispute resolution pursuant to s.13C(1)(b) of the Family Law Act 1975 (Cth) (Act) in an attempt to resolve their differences with each other relating to X. The proceeding was adjourned to the compliance list before Judge Williams on 9 April 2018.[9]
[9] Interim Order 13.3.18, Orders 1 and 2.
The parties appeared before Judge Williams on 9 April 2018 in the compliance list and on the return of the Father’s Notice of Objection[10] to the Subpoena filed by the Mother and addressed to ‘The Proper Officer, Subpoena Management Unit, Victoria Police Centre’(Victoria Police Subpoena),[11] seeking production of:
[…]
2. All information and documents including LEAP records, Intervention Orders, criminal history, charges, pending, family violence and upcoming court cases in relation to [the Father] born [in 1981].
3. All reports, diary entries, file notes, witness statements, data entries and any other documents in relation to Victoria Police involvement with [the Father] for the period 27 July 2015 to date.[12]
[10] Notice of Objection-Subpoena, filed by the Father 1.4.18.
[11] Subpoena to The Proper Officer, Subpoena Management Unit, Victoria Police Centre, filed by the Mother 20.3.18, Schedule, [2]-[3].
[12] Subpoena to The Proper Officer, Subpoena Management Unit, Victoria Police Centre, filed by the Mother 20.3.18, Schedule, [2]-[3].
It is relevant for the purposes of this costs application to note the grounds of objection in the Father’s Notice of Objection to the Victorian Police Subpoena, included the following:
•Production of this information is a breach of my privacy. This is a further attempt by [the Mother] to denigrate me as a person.
•I believe that the [Mother] is requesting this information not for the purpose of this hearing but to serve her and her father, Mr A’s continued denigration of myself. Given that I have an IVO against Mr A, I believe that this information would be shared with him, which will be a breach of the intervention order.[13]
[13] Notice of Objection-Subpoena, filed by the Father 1.4.18.
The grounds of the Father’s objection to the Victorian Police Subpoena are relevant in relation to the Father’s allegations throughout this proceeding that: the Mother had engaged in ‘parental alienation’ since before X was born; and that the Mother had ‘weaponised’ intervention orders against the Father.
The hearing on 9 April 2016 was also the return of the Mother’s Notice of Objection[14] to the Subpoena filed by the Father and addressed to ‘Ms V, Suburb N Child Care Early Learning Centre, Suburb N’ (Suburb N Child Care Subpoena),[15] seeking production of:
[…]
2. A COPY OF ALL SIGN IN AND SIGN OUT TIMES FROM [X’s] FIRST DATE OF ENROLMENT AS A 6 MONTH OLD IN THE SUBURB N CHILD CARE CHILDCARE CENTRE IN SUBURB N UNTIL THE MOST RECENT DATE.
3. A COPY OF ALL COMMUNICATION TO AND FROM [the Mother] TO THE CENTRE ON X’S FATHER [the Father].
4. A COPY OF ALL COMMUNICATION TO AND FROM [the Mother] TO THE CENTRE ON [X].[16]
[14] Notice of Objection-Subpoena, filed by the Mother 2.3.18.
[15] Subpoena to Ms V, Suburb N Early Learning Centre, Suburb N, filed by the Father, 20.2.18.
[16] Subpoena to Ms V, Suburb N Early Learning Centre, Suburb N, filed by the Father, 20.2.18, Schedule [2]-[4].
The Mother objected to the Suburb N Child Care Subpoena to the extent that prior to the release of the documents, she requested that certain identifying information be redacted from the records to ensure privacy of the staff and agents of the Suburb N Child Care Learning Centre and also the privacy of the parties to the proceeding, X and the Mother’s son F (F).[17]
[17] Notice of Objection-Subpoena, filed by the Mother 2.3.18.
At the hearing on 9 April 2018 both the Mother and the Father were self-represented. Judge Williams Ordered, inter alia, that the Notice of Objection to the Suburb N Child Care Subpoena be adjourned to the Final Hearing. Her Honour also ordered that the records produced pursuant to the Victoria Police Subpoena be released for inspection only.[18] The proceeding remained listed for final hearing on 30 April 2018 with an estimate of two days and was listed before myself. I note that at the Final Hearing documents produced pursuant to the Victoria Police Subpoena, being the LEAP Victoria Police Outcomes Report, dated 2 April 2018 in relation to the Father, became an exhibit in the proceeding.[19] At the commencement of the Final Hearing the matter was stood down from 10.30 am until 11.30 am to allow the Father to inspect the documents produced pursuant to the Suburb N Child Care Subpoena.[20] No document produced pursuant to the Suburb N Child Care Subpoena was referred to or admitted into evidence during the Final Hearing.
[18] Interim Order 9.4.19, Orders 3 and 4.
[19] Exhibit R22.
[20] Transcript (30.4.18) P12:L20-46.
On 24 April 2018 Mitchell Family Law filed a Notice of Address for Service. Mitchell Family Law continued to act for the Mother throughout the Final Hearing.
The first two days of the Final hearing took place on 30 April 2018 and 1 May 2018. The proceeding was then adjourned part-heard to 20 August 2018. On 1 May 2018 it was ordered, inter alia, by consent that the Mother’s Solicitors have leave to request the issue of a subpoena addressed to Bentleys requiring the production of all correspondence and documents with: the Administrative Appeals Tribunal (AAT) and the Department of Immigration and Border Protection (DIBP) relating to the Father’s immigration status. It was also ordered that any documents produced pursuant to the subpoena in which there was a claim for privilege be placed in a separate sealed envelope at the time of production.[21]
[21] Orders 1.5.18, Orders 6 and 7; Judgment, [55]-[56].
On 17 May 2018 Mitchell Family Law filed a subpoena addressed to Bentleys (Bentley’s Subpoena),[22] seeking production of:
2. All correspondence and documents to/from the [AAT] and the [DIBP] and any other entity in relation to [the Father], born [in 1981] and his immigration /and or visa status, subject to the following qualification:-
Any documents produced pursuant to the subpoena for which there is a claim for privilege are to be placed in a separate sealed envelope at the time of production.[23]
[22] Subpoena to Bentleys Barristers & Solicitors, filed by the Mother 17.5.18.
[23] Bentleys Subpoena, Schedule, [2].
The Bentleys Subpoena was relevant in relation to allegations made by the Father concerning the Mother and her father Mr A’s alleged interference in the Father’s immigration status in Australia. These unfounded allegations are discussed later in these Reasons for Judgment in relation to s.117(2A)(c) of the Act.
On 29 May 2018, Coote Family Lawyers filed a Notice of Address for Service indicating that they were acting for the Father.
On 1 June 2018, Coote Family Lawyers filed a Notice of Objection-Subpoena in response to the Bentleys Subpoena (Bentleys Subpoena Objection).[24] It was claimed that the documents sought pursuant to the Bentleys Subpoena were subject to legal professional privilege, that production was ‘oppressive in its scope’ and that the documents were ‘materially irrelevant to the current family law proceeding’.[25] The Bentleys Subpoena Objection was listed before me on 14 June 2018.
[24] Notice of Objection-Subpoena, filed by the Father 1.6.18.
[25] Bentley’s Subpoena Objection, 2.
At the hearing on 14 June 2018 the Father was represented by Ms Bos, a Solicitor from Coote Family Lawyers and the Mother was represented by Ms McCreadie of Counsel. On that occasion it was ordered by the Court that:[26]
(a) The Bentleys Subpoena Objection be withdrawn.
(b) Leave was granted to the lawyers for both parties to inspect the documents.[26] Interim Order 14.6.18, Orders 1 and 2.
At the re-commencement of the Final Hearing on 20 August 2018 two of the documents obtained pursuant to the Bentleys Subpoena were admitted into evidence, being:
(a) Visa Grant Notice, issued to the Father on 14 June 2017.[27]
(b)Letter from Bentleys to DIBP, dated 16 October 2015, entitled ‘Response to invitation to Comment – 14 September 2015 (Bentleys 16 October 2015 Letter to DIBP).[28] This letter is significant as it claims that: the Father was ‘in an abusive relationship’; that the Father ‘was a person who would satisfy the family violence ‘provisions’ of the relevant Migration Regulations 1994 (Cth); and that the Father was a ‘victim of family violence conduct[ed] towards him’ by the Mother. These false allegations are discussed in paragraph 81 of the Judgment. It was noted that the Bentleys 16 October 2015 Letter to DIBP failed disclose to the DIBP that the Father was the respondent to an interim intervention order made on 25 September 2015 for the protection of the Mother and F.[29] These false allegations in the Bentleys 16 October 2015 Letter will be discussed later in these Reasons for Judgment in relation to s.117(2A)(c) of the Act.
[27] Exhibit, R9.
[28] Exhibit, R13.
[29] Judgment, [10] and [81].
On 30 July 2018 Coote Family Lawyers filed a Notice of Withdrawal as Lawyer. The Father continued to be self-represented until the conclusion of the Final Hearing on 23 August 2018.
On 29 August 2018 the Mother filed a Notice of Address for Service confirming that she was again self-represented. The Mother has continued to be self-represented since that date.
Judgment was delivered on 16 October 2019. On 7 November 2019 the Mother filed an Application in a Case seeking costs against the Father (Application in a Case). The Application in a Case was listed by the Registry for hearing before me on 3 August 2020. The Application in a Case was supported by an Affidavit which was also filed on 7 November 2019 (Mother’s 7 November 2019 Affidavit).[30] On 12 November 2019 the Mother filed an Acknowledgement of Service wherein the Father acknowledged being served with the Application in a Case and the Mother’s 7 November 2019 Affidavit on 10 November 2019. On 18 July 2020 the Mother filed a further Affidavit in support of the Application in a Case (Mother’s 18 July 2020 Affidavit).[31]
[30] Mother’s Affidavit, affirmed 25.10.19 and filed 7.11.19.
[31] Mother’s Affidavit, affirmed and filed 18.7.20.
On 28 July 2020 Bentleys filed a Notice of Address for Service indicating that they were acting on behalf of the Father.
On 3 August 2020 at the hearing of the Application in Case (Costs Hearing) the Mother was self-represented. The Father was represented by Counsel. The Costs Hearing was conducted remotely and electronically via Microsoft Teams due to the restrictions in force in the State of Victoria, due to the global pandemic of COVID-19. At the time of the Costs Hearing Metropolitan Melbourne was subject to Stage 4 restrictions, which came into force from 6.00pm on Sunday 2 August 2020.
At the Costs Hearing Counsel for the Father made an application for an adjournment on the basis that his instructing solicitors had only recently received instructions to act and the Father was ‘currently locked down in the middle east’ and unable to give instructions. Counsel further informed the Court that the Father had told his instructing solicitor that he was in Country GG.[32] At the time of the Costs Hearing the Father had filed no documents in response the Application in a Case, notwithstanding that he had been served with the Application in a Case and the Mother’s 7 November 2020 Affidavit on 10 November 2019 some 9 months earlier. Counsel for the Father also submitted that the costs application should proceed by way of submissions, contending that the nature of the orders that the Mother was seeking was ambiguous because the Mother had not filed submissions. In discussion with Counsel, I advised Counsel that as the Mother was self-represented it was apparent that the Mother’s submissions were included in her filed Affidavits. I further advised Counsel that I understood that the Mother’s filed material indicated that she was seeking an order for costs on an indemnity basis and in the alternative on a party/party or solicitor and client basis.[33] I therefore declined to adjourn the Costs Hearing. In further discussions with Counsel for the Father a timetable for the filing of further material by the parties was agreed upon. This timetable ensured that the Father had the opportunity to review the Mother’s filed material before filing any submissions in relation to costs in response.
[32] Transcript (3.8.20) P2:L18-27; P4:L8-9.
[33] Transcript (3.8.20) P5:L16-18.
On 3 August 2020 I ordered that:[34]
(a) The Mother file and serve an affidavit annexing invoices in support of her application for costs by 31 August 2020;
(b)The Father file and serve a Response to the Application in a Case by 10 August 2020; and
(c) The Father file and serve any submissions in relation to costs by 28 September 2020.
A. Notation: Judgment to be reserved after 28 September 2020.[34] Order 3.8.20, Orders 1, 2 and 3, and Notation A.
On 7 August 2020 the Father’s Solicitors filed a Response to the Application in a Case (Response) and an Affidavit of the Father in support of the Response (Father’s 7 August 2020 Affidavit). The Father’s 7 August 2020 Affidavit was not witnessed at the time of filing due to the COVID-19 restrictions and was filed with the Court in accordance with Joint Practice Direction 2: JPD of 2020 – Special Measures in response to COVID-19 Electronic filing, Viewing of Subpoenas, Annexures to Affidavits, Signatures on Documents to Affidavits, and Fees.
On 30 August 2020 the Mother filed a further Affidavit in support of the Application in a Case (Mother’s 30 August 2020 Affidavit).[35]
[35] Mother’s Affidavit, affirmed 29.8.20 and filed 30.8.20.
On 29 September 2020 the Father’s Solicitors filed the Father’s Costs Submissions (Costs Submissions).
On 2 October 2020 the Mother filed an affidavit responding to the Costs Submissions (Mother’s 2 October 2020 Affidavit).[36]
[36] Mother’s Affidavit, affirmed and filed 2.10.20.
MOTHER’S APPLICATION
The Mother relied upon: the Application in a Case; the Mother’s 7 November 2019 Affidavit; the Mother’s 18 July 2020 Affidavit; the Mother’s 30 August 2020 Affidavit; and the Mother’s 2 October 2020 Affidavit.
In the Application in a Case the Mother seeks an order that the Father pay to the Mother:
1.
[…] my costs in an amount as agreed or assessed within 30 days calculated as follows:
a.for the period 21 September 2015 to 06 December 2016 in the account of Marshall and Dent and Wilmoth lawyers $58,401.66;
b.for the period 5 March 2017 to 19 September 2018 in the account of Mitchell Family Law Pty Ltd in sum of $52,518.91.
all by way of indemnity costs representing 100% of solicitor/barrister costs incurred by [the Father] up to the end of the Final Hearing.
These amounts include $4,750 in barrister’s fees and $6,976.20 for solicitors’ fees for the hearing in relation to the [Father’s] Contravention Application on 30 October 2017.
In the Mother’s 7 November 2019 Affidavit the Mother deposed:
77. I hereby apply for indemnity costs to the sum of $110,920.57 or a proportion thereof as decided by the Honourable Court.[37]
[37] Mother’s 7 November 2019 Affidavit, [77].
Therefore in the Application in a Case the Mother is claiming the total sum of $110,920.57 in legal costs and disbursements for the period from 21 September 2015 to 19 September 2018 on an indemnity basis. I infer that the Mother is also seeking an order in the alternative that costs be assessed on a party/party basis or a lawyer and client basis. I infer this from the wording of the Mother’s Application in a Case and the Mother’s 7 November 2019 Affidavit referred to in the previous paragraph. During the Costs Hearing, when I discussed my understanding of the Mother’s costs application with Counsel for the Father (as discussed previously under the heading ‘Procedural History’),[38] the Mother did not disagree with my understanding of her costs application.
[38] Transcript (2.8.20) P5:L16-18.
In the Mother’s 7 November 2019 Affidavit the Mother deposed that ‘[t]here is no cost agreement in place’.[39] Annexed to the Mother’s 7 November 2019 Affidavit was what the Mother deposed to as being ‘true copies of all invoices and receipts for my costs with regard to these proceedings’.[40] The relevant annexure to the Mother’s 7 November 2019 Affidavit, being Annexure -15 in fact is:
[39] Mother’s 7 November 2019 Affidavit, [12].
[40] Mother’s 7 November 2019 Affidavit, [77] and Annexure -15.
(a)Marshalls + dent + wilmoth lawyers (Marshalls & Dent):
(i)Accounts Rendered summary for the period 21 September 2015 to 6 December 2016, totalling $58,401.66; and
(ii)Payments Received, Marshalls & Dent General Account, totalling $42,578.74; and Marshalls & Dent Law Practice Trust Account, totalling $15,822.95; and
(b)Mitchell Family Law Pty Ltd:
(i) Trust Account Statement from 15 March 2017 to 19 September 2018 in the total sum of $60,443.70; and
(ii) Statement of Account, dated 15 October 2019, for the period from 31 January 2017 to 19 September 2018.
In the Mother’s 30 August 2020 Affidavit the Mother deposed that she was now seeking an order that the Father pay the Mother:
4. […] costs in the amount as agreed or assessed within 30 days of $137,248.66 or another amount as decided by this Court. These costs of $137,248.66 represent all costs borne by me since [the Father] issued proceedings […] excluding those associated with the Financial Orders and costs that do not relate to the Federal Circuit Court. The total is inclusive of the costs associated with contravention applications […]
5.My original claim for costs as per my Affidavit of 7 November 2019 was for the amount of $110,920.57. […] the Court may wish to use the attached invoices as evidence that I have at least incurred costs to that level and then use that amount as the basis for deciding the total amount to be awarded. I would have no objection to the Court so deciding.[41]
[41] Mother’s 30 August 2020 Affidavit, [4]-[5].
In the Mother’s 30 August 2020 Affidavit the Mother further deposed:
6. The costs have been determined as follows:
a)for the invoice period of 27 May 2016 to 6 December 2016 in the account of [Marshalls & Dent] $53,025.83;
b)for the invoice period 31 March 2017 to 15 October 2019 in the account of Mitchell Family Law Pty Ltd in the sum of $103,176.94.
all by way of indemnity costs representing 100% of solicitor/barrister costs incurred by [the Mother] up to the end of the Final Hearing.[42]
[42] Mother’s 30 August 2020 Affidavit, [6].
From the Mother’s 30 August 2020 Affidavit I understand that the Mother has amended her application for indemnity for costs from an application for an order in the sum of $110,920.57 to an order in the sum of $137,248.66.[43] I also infer that the Mother is continuing to seek an order in the alternative that costs be assessed on a party/party basis or a lawyer and client basis.
[43] Mother’s 30 August 2020 Affidavit, [4]-[6].
Annexed to the Mother’s 30 August 2020 Affidavit is a spreadsheet which is titled ‘Summary of Costs for Cost Application’.[44] This spreadsheet is a table listing the invoices received by the Mother from Marshalls & Dent and Mitchell Family Law, together with a brief description of the costs that have been removed from the quantum of individual invoices. Also annexed to the Mother’s 30 August 2020 Affidavit are copies of each of the individual Tax Invoices from Marshalls & Dent and Mitchell Family Law.[45] These Tax invoices contain a description of the work performed and the date the work was performed. On some of the Tax Invoices the Mother has deleted items for which she is not making a claim.
[44] Mother’s 30 August 2020 Affidavit, [6] and Annexure -1.
[45] Mother’s 30 August 2020 Affidavit, [6] and Annexure -2.
FATHER’S RESPONSE
The Father relied upon: the Response; the Father’s 7 August 2020 Affidavit; and the Costs Submissions.
In the Response the Father seeks an order that the Application in a Case be dismissed and such other order as the Court considers appropriate.
Before proceeding further with these Reasons for Judgment I pause to make some general observations in relation to the Costs Submissions. The recitation of the procedural history of this matter in paragraphs 27 to 62 of the Judgment, and also previously in these Reasons for Judgment under the heading ‘Procedural History’, record that:
(a)Bentleys, the Father’s current solicitors, acted for the Father from the commencement of this proceeding on 16 June 2016, when the Father filed the Initiating Application until 1 September 2016, a period of less than three months;
(b)Since 1 September 2016 Bentleys have not represented the Father in this proceeding. The Father commenced to act on his own behalf by filing the Second Initiating Application on 1 September 2016. Bentleys filed a Notice of Intention to Withdraw as Lawyer on 10 October 2016 and a Notice of Withdrawal as Lawyer on 23 March 2017;
(c) Bentleys did not attend any part of the Final Hearing. The Father was self-represented throughout the Final Hearing, save for the hearing on 14 June 2018 when a solicitor from Coote Family Lawyers appeared for the Father; and
(d)Bentleys came back onto the record as representing the Father in this proceeding on 28 July 2020, nearly four years after the Father first became self-represented.[46]
[46] Notice of Address for Service, filed 28.7.20.
The Costs Submissions make a number of general assertions about the conduct of the Final Hearing. There is no evidence in the Costs Submissions that the Father’s solicitor, who has signed the Costs Submissions (Solicitor), has read the transcript of the six days of the Final Hearing (Transcript) (or any part of the Transcript at all) to form the basis of any of these assertions. Neither has the Father filed any affidavit material to provide the evidentiary basis for these assertions. The Father’s 7 August 2020 Affidavit is three paragraphs in length. The Father’s 7 August 2020 Affidavit identifies the Father as the respondent to the Application in a Case.[47] The Father deposes that Final Parenting Orders were made on 16 October 2019[48] and requests that the Court make an order that the Application in a Case be dismissed.[49] In these circumstances I conclude that the general assertions that permeate the Costs Submissions concerning the conduct of the Final Hearing are speculative and without foundation. Where relevant to these Reasons for Judgment, I will respond to specific assertions made in the Costs Submissions.
[47] Father’s 7 August 2020 Affidavit, [1].
[48] Father’s 7 August 2020 Affidavit, [2].
[49] Father’s 7 August 2020 Affidavit, [3].
RELEVANT LEGISLATION
The general rule in s.117(1) of the Act that each party to proceedings shall bear their own costs, is subject to s.117(2) of the Act.
Section 117(1) of the Act provides:
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC each party to proceedings under this Act shall bear his or her own costs.
Section 117(2) of the Act provides:
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) of the Act is relevant for the purposes of this proceeding. Section 117(2A) of the Act provides:
(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.
In this Court, Chapter 1, Part 21, Division 21.2 of the Rules applies to orders for costs. The following rules are relevant to this proceeding:
21.02 Order for costs
(1)An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2)In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d) set a time for the payment of the costs, which may be before the proceeding is concluded.
[…]
21.04 Costs reserved
If the costs of a motion, application or other proceeding are reserved, the costs reserved follow the event unless the Court otherwise orders.
Chapter 1, Part 21, Division 21.3 of the Rules applies to costs and disbursements. The following rules are relevant to this proceeding:
21.09 Application
(1) This Subdivision applies to costs payable, or to be taxed, under an Act, these Rules or an order of the Court, in a proceeding.
(2) Subject to paragraphs 21.02(2)(c) and 21.11(2)(a), Chapter 19 of the Family Law Rules does not apply to a Family law or child support proceeding in the Court.
(3) […]
[…]
21.11 Taxation of costs
(2) When taxing a statement of costs, a taxing officer must apply:
(a) for a family law or a child support proceeding – the scale of costs set out in Schedule 3 to the Family Law Rules; and
(b) […]
(3) In this rule:
taxing officer means a Registrar.
Chapter 19, Part 19.4 of the Family Law Rules applies to costs orders. The following rule is relevant to this proceeding:
19.08 Order for Costs
[…]
(3)A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.
Chapter 19, Part 19.5 of the Family Law Rules applies to the calculation of costs. The following rules are relevant to this proceeding:
19.18 Method of Calculation of Costs
(1)The Court may order that a party is entitled to costs:
(a) of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c) to be calculated in accordance with the method stated in the method stated in the order; or
[…]
(2)If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.
(3)In making an order under subrule (1) the court may consider:
(a) the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates normally payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)whether a lawyer’s conduct has been improper or unreasonable;
(f)the time properly spent on the case, or in complying with pre-action procedure;
(g) Expenses properly paid or payable.
RELEVANT LEGAL PRINCIPLES
The construction to be given to s.117 of the Act and the inter-relationship of s.117(1) and (2) was considered by the High Court in Penfold v Penfold (Penfold).[50]In the joint judgment of Stephen, Mason, Murphy, Aiken and Wilson JJ in Penfold it was said:
12. It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs. (at p315)
13. Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case" (at p315)
14. Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised […].[51]
(Emphasis added)
[50] [1980] HCA 4; (1980) 144 CLR 311.
[51] [1980] HCA 4, [12]-[14].
The High Court therefore made it clear in Penfold that s.117(2A) requires a finding of ‘justifying circumstances as an essential preliminary to the making of an order’. Beyond this, there is no ‘additional or special onus’ on the applicant for costs which requires the Court to make a preliminary finding that special or exceptional circumstances exist before making an order for costs: Jensen & Jensen.[52]
[52] [1982] FamCA 57; (1982) FLC 91-263.
No one factor under s.117(2A) prevails over any other factor. It is a matter of weight that is accorded to each of the relevant factors in the trial judge’s discretion: Medlon & Medlon (No. 6) (Indemnity Costs).[53]
[53] [2015] FamCAFC 157, [24]; (2015) FLC 93-664; (2015) 54 Fam LR 1.
It is not necessary for each of the factors listed in s.117(2A) to be met in order for the Court to make a costs order. In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish[54] the Full Court of the Family Court (Full Family Court) said when referring to s.117(2A):
41.A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.[55]
[54] [2005] FamCA 158; (2005) 33 Fam LR 123.
[55] [2005] FamCA 158; (2005) 33 Fam LR 123, [41].
The ordinary rule is that where the Court orders the costs of one party to be paid by another party, the order is for the payment of those costs on a party and party basis. The Court has the discretion to award costs on an indemnity basis in appropriate cases.[56] However in Kohan & Kohan[57] the Full Family Court said:
The intent of s117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the Court may make such order as the Court considers just. As we have pointed out, the Court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. […] Consequently, the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind. See Degmam v. Wright (No. 2) (supra); Wentworth v. Rogers (No. 5) (1986) 6 NSWLR 534; Hobartville Stud v. Union Insurance Co. (1991) 25 NSWLR at 368 to 370.
Indemnity costs orders are still an exception in this and other jurisdictions.[58]
(Emphasis added)
[56] Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340.
[57] [1992] FamCA 116; (1993) FLC 92-340.
[58] [1992] FamCA 116; Kohan & Kohan (1993) FLC 92-340, 79, 614.
In Limousin & Limousin (Costs) (Limousin)[59] the Family Court reviewed the authorities in relation to indemnity costs. The Court referred to the judgment of Sheppard J[60] in the Federal Court in Colgate-Palmolive v Cussons Pty Ltd (Colgate-Palmolive).[61]Sheppard J said in Colgate-Palmolive after referring to earlier authorities:
2.The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis [...]
3.This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate Court of Appeal or of the High Court would be required to alter it […]
4.In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (39 CH D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston (1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at p 8) in Tetijo, “The categories in which the discretion may be exercised are not closed”. Davies J expressed (at p 6) similar views in Ragata [...][62]
(Emphasis added)
[59] [2007] FamCA 1178; [2007] 38 FamLR 478.
[60] [2007] FamCA 1178, [42]; [2007] 38 FamLR 478.
[61] [1993] FCA 536; (1993) 46 FCR 225.
[62] [1993] FCA 536, [24]; (1993) 46 FCR 225.
In Limousin the Full Court also referred to Yunghanns v Yunghanns[63] a later decision of the Full Court, in which it was said:
31. […]
It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought.[64]
[63] [2000] FamCA 681; (2000) FLC 93-029.
[64] [2000] FamCA 681, 31; (2000) FLC 93-029, 87, 471.
In Colgate-Palmolive Sheppard J provided examples of circumstances that might warrant the exercise of the discretion to award indemnity costs. These were summarised by Holden CJ in Munday v Bowman[65] as follows:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] 81 ALR 397.
(b)Making allegations of fraud, knowing them to be false, and the making of the irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty Ltd (supra).
(c)Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, Federal Court, 3 May 1991).
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta (sic) Developments Pty Ltd v Westpac Banking Corporation (unreported Federal Court, 5 March 1993).
(e) An imprudent refusal or an offer to compromise.[66]
[65] (1997) FLC 92-784, 84, 660. See also Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; and Danks & McCabe [2017] FamCAFC 41; (2017) FLC 93-767.
[66] (1997) FLC 92-784, 84, 660.
The discretion to make an order for indemnity costs remains with the judge notwithstanding the existence of circumstances that may warrant the making of such an order. In Munday v Bowman,[67] Holden CJ referred to the following passage from the judgment of Sheppard J in Colgate-Palmolive:
It remains to say that the existence of the particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis does not mean that judges are necessarily obliged to exercise the discretion to make such an order. The costs are always in the discretion of the trial judge.[68]
[67] (1997) FLC 92-784. See also Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; and Danks & McCabe [2017] FamCAFC 41; (2017) FLC 93-767.
[68] Munday v Bowman (1997) FLC 92-784, 660-661.
The Full Family Court in Stasiuk & Guild[69] recently had occasion to re-state the circumstances in which an indemnity costs order may be made. The Full Family Court said:
[69] [2021] FamCAFC 62 (6 May 2021) (Strickland, Ryan and Kent JJ).
8.Central to both grounds of appeal is the unremarkable proposition that the approach to an application for indemnity costs made under the Family Law Act 1975 (Cth) (“the Act”) is well settled by the Full Court decision of Kohan and Kohan (1993) FLC 92-340 (“Kohan”). The Full Court concluded that the costs power under s 117 of the Act includes the power to make orders for costs on an indemnity basis. The Full Court said at 76,614:
[T]he purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges… [T]he Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind.
Indemnity costs orders are still an exception in this and other jurisdictions [.]
(Citations omitted)
[…]
17.Reference has already been made to Kohan and the principle that an order for indemnity costs in proceedings to which s 117 applies is exceptional. Kohan was cited in Prantage as, in effect, the cornerstone of well-established law in this jurisdiction [77], [147]. As Murphy J said in Prantage:
152. Section 117(1) is important in that respect. Indemnity costs are confined to “an exceedingly rare situation” (Callinan J quoted by Thackray and Ryan JJ at [42]) in jurisdictions where “the usual rule” is that a successful party receives an order for costs (ie “costs follow the event”). They might, then, be seen to be more so in this jurisdiction where the “usual rule” is that “each party … shall bear his or her own costs” (s 117(1)). The comments by this Court in Kohan that indemnity costs are “a very great departure” from the “normal standard” should be seen in that context [.]
[…]
20.Whilst not intending to labour the point, but to show that Kohan remains good law, reference should be made to Mansfield and Ors & Mansfield and Anor (2019) FLC 93-920 where this Court said:
7. The Full Court noted in [Prantage] at [42], that even in jurisdictions where the usual rule is that costs follow the event, it is well settled that indemnity costs “should only occur in an extremely rare situation” (see Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] 179 ALR 406). We agree with Murphy J in Prantage at [152] that in proceedings under the Act, where the usual rule is that each party shall bear his or her own costs, an order for indemnity costs is even more exceptional.
(Emphasis added)
The Full Family Court then went on to discuss the doctrine of precedent, referring to Elmi & Munro (2019) FLC 93-912, where it was said that:
13. […]
22.The obligation on a judge of the Federal Circuit Court of Australia or the Family Court of Australia is to follow and apply decisions of the Full Court of the Family Court of Australia. It is not for trial judges to question or cavil with them. Stephen J explained this in Viro v The Queen (1978) 141 CLR 88 at 129 as follows:
The first duty of a court is to administer justice according to law. However in the case of an inferior court operating within a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as that precedent authority has declared it to be, whatever may be its own inclinations in the matter. The sanction implicit in the doctrine of precedent is simple and effective: if an inferior court fails to observe the doctrine the superior court will correct its decision on appeal[.]
14.As this case demonstrates, the refusal to follow precedent almost inevitably leads to an appeal and perhaps a rehearing with the attendant systemic costs and even more stress and legal costs for litigants.[70]
[70] Stasiuk & Guild [2021] FamCAFC 62, [8], [13]-[14], [17], [20].
I turn now to consider the relevant matters pursuant to s.117(2A) of the Act.
SECTION 117(2A) CONSIDERATIONS
(a) The financial circumstances of the parties to the proceedings
The Mother
In the Mother’s 7 November 2019 Affidavit the Mother deposed that her financial circumstances were modest. The Mother said that she earned $3,999.23 net a fortnight ($103,979.98 net per annum) from which she had to pay almost the totality of X’s food, clothing, medical and educational costs. The Mother was in debt in the amount of $97,920 for legal costs relating to these proceedings.[71]
[71] Mother’s 7 November 2019 Affidavit, [14].
In the Mother’s 18 July 2020 Affidavit the Mother deposed that she had a gross income of $175,000 per annum and that she was still paying off the debt to her parents for the legal costs relating to this proceeding at the rate of $1,000 per calendar month.[72]
[72] Mother’s 18 July 2020 Affidavit, [4].
The Father
In the Costs Submissions, it is contended:
(a)The financial circumstances of the parties
[…]. The situation of the [Father] at the trial was that he was being supported by his partner as he was unable to obtain employment. In recent times he has obtained some work overseas but it is submitted that this sub-section would not provide the basis of a costs order.[73]
[…]
[73] Costs Submissions, p.5.
Whether any party has been wholly unsuccessful in the proceedings
[…]
It is also submitted that the making of a significant costs order against [the Father] that he cannot afford to pay will only lead to greater hardship and further litigation when [the Father] returns to Australia.[74]
[74] Costs Submissions, p.9.
The Father has not filed any affidavit material in relation to his current financial circumstances.
The Mother has produced evidence that shortly after Judgment was delivered the Father left Australia to work overseas. In November 2019 the Father was anticipating being able to afford airfares to return to Australia on 9 occasions throughout 2020, as well as education fees for X of $6,000 per annum.[75]
[75] Mother’s 18 July 2020 Affidavit, [5], [9]-[10], Annexures 1 and -2.
Impecuniosity does not necessarily prevent a costs order being made. In Nada & Nettle (Costs)[76] the Full Family Court held:
11.That a party is impecunious, even indigent, is not a bar to the making of a costs order if the Court is otherwise of the opinion that such an order ought to be made.[77]
[76] [2014] FamCAFC 207, [11]; (2014) FLC 93-612. See also D & D (No 2) (2010) FLC 93-435; [2010] FamCAFC 64.
[77] [2014] FamCAFC 207, [11]; (2014) FLC 93-612.
In the absence of any affidavit evidence of the Father’s current financial circumstances the submissions in the Costs Submissions are without merit and based on speculation without any evidentiary basis.
(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
As the Court is advised, neither the Mother nor the Father were in receipt of assistance by way of legal aid.
(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 the pleadings, particulars, discovery, inspection, direction to answer questions, admissions of facts, production of documents and similar documents
Unfounded Allegations
In this matter the Father made a number of significant allegations against the Mother and Mr Petrie that proved to have no evidentiary basis whatsoever. These allegations are discussed at paragraphs 80 to 82 of the Judgment. This had the effect of requiring the Mother to file lengthy affidavit material responding to these allegations and requiring the Mother to call a number of witnesses to rebut these groundless allegations. It also required extensive cross-examination of the Father and his partner Ms J by Counsel for the Mother. The Mother filed trial affidavits for six witnesses, being: Mr M (Mother’s partner), Mr G (Mother’s first husband), Mr A (Mother’s father), Ms U (Mother’s sister), Ms HH (Mother’s psychologist) and Ms T (transcriber of the Magistrates’ Court proceedings).[78] The requirement for these affidavits and witnesses increased the Mother’s legal costs and the length of the Final Hearing.
[78] Judgment, [65].
The unfounded allegations the Father made against the Mother may be further expanded upon for the purposes of this costs application. The Father claimed that the Mother submitted false information to the Child Support Agency (CSA).[79] When cross-examined the Father persisted with this allegation and claimed that the Mother had submitted ‘fraudulent documentation’ to the CSA.[80] The Father claimed that as a result of the false information provided to CSA by the Mother, the CSA ‘put a ban on him leaving the country’.[81] When cross-examined the Father persisted with this allegation.[82] The Father produced no credible evidence to support this allegation. At the Final Hearing the Father was in arrears to the CSA in excess of $22,429.[83] A month after Judgment was delivered, the Father attempted to bargain with the Mother in relation to the CSA arrears and in an email dated 29 November 2019 to the Mother, the Father offered to pay the Mother $14,000 in settlement of the arrears. On 18 December 2019 the Mother received a payment from the CSA of $18,988 in relation to the Father’s child support arrears.[84]
[79] Father’s Affidavit, filed 9.4.18, [168].
[80] Transcript (30.4.18) P20:L23-24.
[81] Father’s Affidavit, filed 9.4.18, [168].
[82] Transcript (30.4.18) P20:L14 -27.
[83] Judgment, [142]; Exhibit R11.
[84] Mother’s 18 July 2020 Affidavit, [8]-[10] and Annexures -1 and -2.
In the Father’s Affidavit filed on 9 April 2018 (Father’s 9 April 2018 Affidavit)[85] the Father deposed:
175.The father has claimed at the start of these proceedings and maintained until this day that the mother has continuously interfered in his residential VISA status in Australia.[86]
[85] Mother’s Affidavit, filed 7 November 2019, [24] and Annexure -4.
[86] Father’s 9 April 2018 Affidavit, [175].
The Father’s 9 April 2018 Affidavit at paragraphs 176 to 198 set out various further allegations made by the Father concerning the Mother and Mr Petrie’s alleged interference in the Father’s immigration status in Australia. The more serious of these allegations were as follows:
183.The father’s business contact as per the father’s affidavit filed 13/4/2017 […] was contacted by [the Mother’s] father, Mr A to attempt to influence his VISA outcome and referred to his contact “the minister” from when he was a diplomat having helped him out before. This also indicates that the mothers (sic) father is in fact the one with the hatred towards [the Father] and not the other way around as detailed in a section of the mother’s trial affidavit.[87]
[87] Father’s Trial Affidavit, [183].
When cross-examined the Father persisted with the allegations made in paragraph 183 of the Father’s 9 April 2018 Affidavit, notwithstanding being cautioned by the Court about the seriousness of the allegations that he was making.[88] The Father produced no credible evidence and no documents to support these allegations. In the Mother’s 7 November 2019 Affidavit the Mother deposed:
66.These allegations of fraud are without any foundation. [The Father] is not only alleging that my father committed fraud but also suggesting that a Federal Minister did so. At the time of the email in question (February 2017) The Hon Peter Dutton was the Minister in charge of Immigration (and had been since 2014) and was still responsible at the time of [the Father’s 9 April 2018 Affidavit]. Mr Dutton became a member of Parliament whereas my father left the public service in 1998. My father has never met with, “helped out” or talked to Mr Dutton or indeed any member of the present Cabinet. […][89]
[88] Transcript (1.5.18) P121:L4-44; P122:L23-P123:L19; P152:L39-P154:L7.
[89] Mother’s 7 November 2019 Affidavit, [66].
In the Father’s 9 April 2018 Affidavit the Father alleged:
178.[The Father’s] VISA was cancelled on 11/3/2016. It was cited the reasons were based on information the mother had supplied to DIBP on multiple occasions, totalling over 100 pages, claiming he supplied false information to them and she alleged family violence, fraud, contrived relationship and community threat. Annexure F.
[…]
185.The father sought all evidence of contact made to immigration from [the Mother] and her father Mr A. This has been going on for over a year and as per advice from FOI officer has been fought by [t]he mother and her father Mr A to release this information.
186.Freedom of Information have released to the father correspondence from [the Mother] and Mr A yet redacted some contents except the email addresses and dates of communication and some jobs details. This is evidence alone to support whilst they both maintain they did not contact immigration an attempt to remove the father from the country that in fact they did, as shown in Annexure G.
[…]
188.[The Mother], […], contacted immigration in an attempt to have the father’s VISA cancelled and as a result having removed from Australia, X’s life, his partner, their unborn child’s life, as per annexure F and G […].[90]
[90] Father’s 9 April 2018 Affidavit, [178], [185]-[186] and [188].
The Father produced no credible evidence and no documents to support these allegations. The Father’s 9 April 2018 Affidavit produces at paragraph 188 annexures F and G which are tables that are respectively described as ‘[The Mother] email, fax, and letters to Department of Immigration & border control (sic) – TO GET [the Father’s] VISA CANCELLED’ and ‘MR A’s COMMUNICATION TO DIBP’. No documents were produced by the Father to substantiate the contents of either annexure F or G.
Further the Bentleys 16 October 2015 Letter to the DIBP claimed that: the Father was ‘in an abusive relationship’; that the Father ‘was a person who would satisfy the family violence ‘provisions’ of the relevant Migration Regulations 1994 (Cth); and that the Father was a ‘victim of family violence conduct[ed] towards him’ by the Mother. These false allegations are discussed in paragraph 81 of the Judgment. The Bentleys 16 October 2015 Letter to DIBP also failed disclose to the DIBP that the Father was the respondent to an interim intervention order made on 25 September 2015 for the protection of the Mother and F.[91]
[91] Judgment, [10] and [81].
When cross-examined the Father continued to blame the Mother for the cancellation of his Visa.[92]
[92] Transcript (30.4.16) P20:L13-14.
In the Father’s 9 April 2018 Affidavit at paragraphs 180 and 181, the Father alleged:
180.The father appealed and went to a tribunal at the AAT to attempt to have the decision over turned.
181.It was evident that the mother knew this and had supplied the AAT with information and requests not to overturn the decision.
The Father produced no credible evidence or documents to support the allegation made in paragraph 181 of the Father’s 9 April 2018 Affidavit. When the Father was cross-examined in relation to his appearance before the AAT, it was evident that the AAT had not been informed by the Father that he was not paying Child Support and was $4,959.76 in arrears.[93]
[93] Judgment, [82]; Exhibit R7, [36]; Transcript (1.5.18) P148:L4-P149:L4.
The cross-examination in relation to the allegations made in paragraphs 175 to 198 of the Father’s 9 April 2018 Affidavit took a considerable period of time. During the cross-examination reference was made to the Bentleys 16 October 2015 Letter to DIBP, which had been obtained pursuant to the Bentleys Subpoena. The cross-examination was successful in demonstrating that the allegations made by the Father against the Mother and Mr Petrie were unfounded.
The Father concluded the allegations made in paragraphs 175 to 198 of the Father’s 9 April 2018 Affidavit with the following allegations:
197.The father was not granted a permanent VISA until mid-2017, he and his family lived under constant fear of him being removed from the country and it also affected his chance of employment right up to this time which caused his family financial hardship.
198. These allegations by [t]he mother and the lengths she went to are the absolute definition parental alienation.[94]
[94] Father’s 9 April 2018 Affidavit, [197]-[198].
The allegation of ‘parental alienation’ in paragraph 198 of the Father’s 9 April 2018 Affidavit had been a constant allegation made by the Father since the commencement of the proceedings. Paragraph 174 of the Father’s 9 April 2018 Affidavit confirms this where the Father deposed:
174.The mother has continuously fought to remove X’s father from her life, prior to her even being born.[95]
[95] Father’s 9 April 2018 Affidavit, [174].
I concluded that the allegation of ‘parental alienation’ by the Father against the Mother was unfounded. In the Judgment in the discussion concerning s.60CC(3)(i) of the Act, I said that:
165. The Mother has demonstrated an appropriate attitude towards the responsibilities of parenthood including facilitating a relationship between X and the Father, notwithstanding the issues of family violence and ongoing belittling and negative communications from the Father.[96]
[96] Judgment, [165].
The allegation by the Father of ‘parental alienation’ permeated the whole of the proceeding. Cross-examination and preparation of affidavits by the Mother’s lawyers assisted the Court in understanding the inter-relationship between the family violence perpetrated by the Father, the Father’ consistent allegation that the Mother had engaged in ‘parental alienation’ and the stress the Mother was under by reason of the Father’s behaviour.
In the Judgment I found that:
118. The Father’s constant narrative has been that the Mother has “weaponised” intervention orders against him.[97]
[97] Transcript T21:4-14; Judgment, [118].
The cross-examination in relation to the Father’s behaviour and attitude towards family violence took a considerable period of time. This included the Father’s attempts to obtain an intervention order against Mr Petrie which is discussed at paragraphs 20 to 26 of the Judgment.
From the commencement of this proceeding the Father has made allegations about the state of the Mother’s mental health, which have been demeaning and used to attempt to bolster his own position. These include:
In the Father’s Affidavit, filed on 16 June 2016 under the heading ‘Childcare Capabilities’ the Father claimed:
14.[The Mother] suffered from a depressive illness at this time and much of the childcare duties involving F necessarily fell to me. She was unresponsive to my suggestions (and those of her mother) that she seek professional help. Eventually she agreed and went on prescribed medication.[98]
[98] Father’s Affidavit, filed 16.6.16, [14].
In the Mother’s Affidavit filed 28 July 2016, the Mother denied that she suffered or had in the past suffered a ‘depressive illness’. The Wife deposed that she had seen a psychologist ‘concerning moderate anxiety’. The Mother denied that her mother had suggested that she seek help or that her ability to care for F had been impaired. The Mother deposed that she still occasionally saw her psychologist who was helping her manage ‘the emotional effects of the family violence by [the Father] and our separation’. A letter written by the Mother’s psychologist, Ms HH, dated 6 January 2016 was annexed to the Affidavit.[99]
[99] Mother’s Affidavit, filed 28.7.16, [95] and Annexure “-5”.
In the Father’s Affidavit filed 2 November 2016 the Father deposed:
26.[…] [The Mother] has suffered with depression ever since I met her in 1996. The Wife attempted suicide twice when we were dating as teenagers due to the rape that took place the year before we met by a family friend. I still have copies of the suicide letters [the Mother] wrote. The [Mother] never sort (sic) help for her depression and during our relationship I bore the responsibility of keeping her safe. When we re-met and our relationship re-developed I was the person that got the [Mother] to start seeing a [p]sychologist. As to the [Mother’s] mother, she still thanked me profusely for getting the [Mother] the help she needed.[100]
[100] Father’s Affidavit, filed 2.11.16, [26].
The Mother has deposed that all of these claims are untrue.[101]
[101] Mother’s Trial Affidavit, filed 27.2.18, [62]; Mother’s Affidavit, filed 7.11.19, [24(s)].
In the Father’s Affidavit filed on 13 April 2017 the Father deposed:
64.The [Father] believes based on [the Mother’s] mental health history, and that of her father, who has also been treated for severe depression in the past. That [the Mother] does require assistance to cope with the riggers (sic) of caring for X and allowing for the empathy, she sorely lacks, to understand that X has a right to have both parents in her life.[102]
[102] Father’s Affidavit, filed 13.4.17, [64].
The Mother has deposed that these claims are untrue.[103]
[103] Mother’s Trial Affidavit, filed 27.2.18, [65]. Mother’s Affidavit, filed 7.11.19, [24(t)].
The Mother’s Lawyers filed a Trial Affidavit of Ms HH, Clinical Psychologist on 17 April 2018 (Ms HH Affidavit) to rebut the Father’s persistent allegations concerning the Mother’s mental health and her capacity to parent her children. Annexed to the Ms HH Affidavit were reports prepared by Ms HH in relation to the Mother, dated 23 September 2015, 6 January 2016 and 21 November 2017 (21 November 2017 Report).[104] In the 21 November 2017 Report Ms HH included the following:
[104] Ms HH Affidavit, [1] and Annexures “-1”, “-2” and “-3”.
I am writing in my capacity as Clinical Psychologist, in relation to [the Mother], who has been a client of mine for over three years.
I am writing to offer relevant input regarding psychological impact to [the Mother] of exposure to continued emotional abuse from her ex-husband [the Father].
I have always found [the Mother] to be insightful and proactive in regards to her mental health. When she first came to see me, in relation to anxiety, she diligently followed advice and implemented strategies to help with the symptoms she was experiencing. [The Mother] possesses good self-awareness and openness to feedback. She is honest with herself about her own shortcomings and able to take on feedback and input.
[The Mother] was regularly attending counselling sessions at the time that she began to realise there were many significant concerns about her marriage. […] [The Mother] began to experience emotional abuse and verbal abuse from [the Father]. Due to much of their communication at this time being by SMS and email, much of this abuse is well documented.
[The Mother] came to counselling regularly during this time. […]
Unfortunately, over two years later, the emotional abuse has continued. [The Mother] has tried her hardest to get on with her life and create a safe, nurturing environment for the children. This has not been easy given that she regularly receives emails from [the Father] that are cruel and demeaning. Being a good parent is the most important thing to [the Mother]. Much of the abuse in the emails targets her parenting and paints her as a selfish, unloving mother. It has been extremely difficult for [the Mother] to continually ignore these messages. While she knows intellectually they are not true, it takes an extreme emotional toll to continually be told that you are failing at that which you care the most about.
[…]
The last 2 ½ years have definitely taken their toll on [the Mother’s] mental health. She works hard to minimise the impact to her children; however she is now experiencing anxiety and reactive depression. [The Mother] has not historically suffered with depression; however the emotional abuse that she has endured has left her feeling hopeless and powerless. She often feels very down and sad [The Mother] has had difficulty sleeping particularly when the abuse escalates. She feels anxious much of the time as she is constantly anticipating the next contact she will have with [the Father]. [The Mother] has been left feeling humiliated and confused by the extent, content and intention of the abuse.
In summary, I have been incredibly impressed with the strength that [the Mother] has shown during the past two years, given the situation she has been in. I do not have any concern about [the Mother’s] ability to care for her children and act in their best interest. […][105]
[105]Ms HH Affidavit, [1] and Annexure “-3”.
On the first day of the Final Hearing prior to commencing her opening address, Counsel for the Mother said:
[…] Your Honour will note that there are a large number of witnesses in the Wife’s case in these proceedings, mainly to deal with allegations made by the father. Now I haven’t been advised whether they are all required for cross-examination. But assuming they are, it would be unlikely we would get to [the] family report writer in the two days allocated […][106]
[106] Transcript (30.4.18) P4:L14-19.
On the first day of the Final Hearing it was explained to the Father that if the Mother’s witnesses were not cross-examined, their affidavit evidence would be admitted into evidence unchallenged. The Father then said that he wanted to cross-examine all of the Mother’s witnesses, apart from Ms T.[107] Ultimately the Father did not seek to cross-examine Ms U (the Mother’s sister), Ms HH (the Mother’s psychologist) or Ms T (transcriber of the Magistrates’ Court proceedings).[108]
[107] Transcript (30.4.18) P8:L9-30.
[108] Judgment, [90].
In relation to the Husband’s decision not to cross-examine the Mother’s psychologist Ms HH, the Costs Submissions state:
A. Dishonesty
[…]
It is submitted that the cross-examination of a professional witness is no easy task and very understandable that at the virtual end of a long trial a litigant in person may feel unable to accomplish the task.[109]
[109] Costs Submissions, p.6.
The Costs Submissions do not refer to any relevant part of the Transcript in support of this submission. Therefore I conclude that the submission is without merit and is based on speculation without any evidentiary basis.
As discussed, one of the Father’s central unfounded allegations was that the Mother had long term mental health problems which impacted on her ability to care for both X and her son F. On the fifth day of the Final Hearing, Counsel for the Mother requested that the Father advise the Court as to whether he still required Ms HH for cross-examination and whether he was ‘challenging an aspect of her report or not’. The Father had just been reminded by the Court that if he did not require Ms U (the Mother’s sister) for cross-examination, then Ms U’s affidavit would be admitted into evidence as uncontested.[110] In relation to the Ms HH Affidavit, the Father’s response was ‘[a]gain, your Honour, I am happy to accept her affidavit as it stands’.[111] In my view the Husband well understood from the reports annexed to the Ms HH Affidavit, and in particular the 21 November 2017 Report, that it was Ms HH’s professional opinion that: the Mother had not historically suffered depression; and that the reactive depression the Mother was suffering from at that time had been caused by sustained emotional abuse from the Father. It was therefore unsurprising that the Father would not want to afford Ms HH the opportunity to provide further evidence that would not be unlikely to be favourable to the Father, when he asked Ms HH any questions in cross-examination. As the trial judge observing the Father throughout the Final Hearing, this seems a plausible explanation for the Father’s decision not to cross-examine Ms HH.
[110] Transcript (22.8.18) P223:L34-47.
[111] Transcript (22.8.18) P224:L9.
In relation to the length of the Final Hearing and the number of the Wife’s witnesses, the Costs Submissions state:
d. The making of a large number of allegations that were found to be without foundation
[…]
In so far (sic) as it is asserted that the [Father’s] allegations led to a longer than necessary trial it should be born in mind that the length of the material filed by both parties was extensive. The [Mother] relied on more witnesses than the [Father] and affidavit material of similar if not greater length.
Further, the length of the case was greatly shortened by the fact that the [Father’s] cross-examination of all the [Mother’s] witnesses was largely completed in just over a day, whereas had the [Father] been represented that period would likely have been considerably longer given the number of issues ventilated and the orders eventually made.[112]
[112] Costs Submissions, p.7
If not for the number of significant unfounded allegations made by the Father against the Mother and Mr Petrie, the Mother would not have been required to respond to the allegations in her affidavits and by calling as many witnesses. Further, if the Father had been represented it is likely that the length of the Final Hearing would have been significantly reduced, as the Father’s unfounded allegations would not have been prosecuted by Counsel, as they were based on pure speculation and had no evidentiary basis.
In addition to the unfounded allegations the Father made against the Mother and Mr Petrie, the Father was also significantly untruthful in relation to a wide range of matters. This also increased the length of the cross-examination and the number of witnesses which were required to provide rebutting evidence.
I also refer to the following findings in the Judgment:
77.Under cross-examination the Father did not answer questions in a responsive manner had to be reminded by the Court repeatedly to answer the questions asked by Counsel. The Father presented as an evasive witness who found it difficult to actually answer the question asked. The Father often forgot what the original question was and had to be reminded.
78.The Father was inconsistent in his evidence and appeared to be trying to tailor his evidence to best support his case. The Father presented as disingenuous and significantly lacking in insight regarding the impact of his conduct and comments on others. He repeatedly attempted to argue with Counsel for the Mother instead of answering questions.[113]
[113] Judgment, [77]-[78].
The Father’s behaviour when giving evidence, referred to in the previous paragraph also contributed to the length of the cross-examination and therefore extended the length of the Final Hearing.
I conclude that the submissions the Costs Submissions in relation to the length of the hearing are without merit and are rejected.
Family Violence
The Father used an affidavit filed in the proceeding to commit a further act of family violence against the Mother by intentionally humiliating and demeaning the Mother. In the discussion in relation to s.60CC(2)(b) of the Act the Judgment states:
125The most egregious recent behaviour of the Father, was in relation to the Father’s trial affidavit[114] (Trial Affidavit). In the Trial Affidavit, which the Father prepared himself, the Father included the following:
When the parties were together the mother made pornographic videos of herself whilst her son F was in her care and sent them to the father. Including her masturbating, using various sex toys. The [father] has resisted exposing this but the attempted demise of his character has led him to expose this and the footage can be submitted as evidence if required.[115]
126. The contents of this paragraph served no forensic purpose in this proceeding whatsoever. The Father was cross-examined in relation to this paragraph[116]. I determine the Father by including paragraph 171 in his Trial Affidavit intended to humiliate and demean the Mother. During the cross-examination in relation to paragraph 171 the Mother was visibly upset.[117]
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
[114] Father’s Affidavit, filed 9.4.18.
[115] Father’s Affidavit, filed 9.4.18, [171].
[116] Transcript T95:5-99:31
[117] Judgment, [125]-[126].
The Mother did not make any submissions in relation to this consideration.
(e) Whether any party to the proceeding has been wholly unsuccessful in the proceedings
The Father was wholly unsuccessful in relation to this proceeding. The orders that the Father sought prior to the commencement of the Final Hearing were set out in the Father’s Outline of Case and are summarised at paragraph 51 of the Judgment (Father’s Outline of Case). The orders the Father sought at the conclusion of the Final Hearing are summarised at paragraph 66 of the Judgment (Father’s Proposal). The orders that the Mother sought prior to the commencement of the Final Hearing were set out in the Mother’s Outline of Case and are summarised at paragraph 50 of the Judgment (Mother’s Outline of Case). The orders that the Mother sought at the conclusion of the Final Hearing are summarised at paragraph 64 of the Judgment (Mother’s Proposal).
The Father sought joint parental responsibility. The Court made orders in accordance with the Mother’s Proposal, which was that the Mother have sole parental responsibility with a limited obligation to consult with the Father in relation to long-term decisions.[118]
[118] Final Orders, Orders 2 and 4; Judgment, [64(a) and (b)].
There was a dispute in relation to where X was to attend Kindergarten and on how many days a week X was to attended kindergarten.[119] As a result of the orders made that the Mother have sole parental responsibility for X, the Mother was able to choose where and when X attends kindergarten and also choose X’s primary and secondary schools.
[119] Judgment [50(c)].
In the Father’s Outline of Case the Father sought the following order:
The father continue to utilise his partner, Ms J, to communicate with [the Mother] on his behalf until such time he is not under threat from the mother and her agents as demonstrated to date.[120]
[120] Judgment, [51(k)]; Father’s Outline of Case, filed 27.4.18, Statement of Precise Orders Sought, Order 19.
In the Father’s Proposal the Father abandoned his application for the order referred to in the previous paragraph. In relation to this proposed order the Judgment states as follows:
124It must have become apparent to the Father during the first stanza of the Final Hearing that his insistence upon only communicating with the Mother via Ms J, was not likely to work in his favour. During the adjournment of the Final Hearing the Father commenced communicating directly with the Mother again. From 24 May 2018 [the] Father started corresponding directly with the Mother. The Father in this correspondence continued to denigrate the Mother and portray her as an uncaring parent. He transformed issues that should have been easily resolved or that were minor into unnecessary and lengthy correspondence.[121]
[…]
192. […]
c) The Father abrogated responsibility for communicating with the Mother by having Ms J communicate with the Mother. The Father did not alter this position until after he was cross-examined at length in relation to this matter. The communication from the Father to the Mother during the adjournment of the Final Hearing continued to be inappropriate.
d) There is no evidence that the Father believes that there is any issue with his communication style.
e) The Father’s style of communication is such that by his own admission he is likely to continue to breach the intervention order. By his own admission he becomes frustrated with the Mother and “bubbles over”. It is for this reason that he put a third party in place to communicate on his behalf so that he did not suffer a further breach of the intervention order.[122]
[121] Mother’s Affidavit, filed 14.8.18.
[122] Judgment, [124], [192(c), (d) and (e)].
The discussion at paragraph 192 of the Judgment was in relation to s.61DA of the Act, and constituted part of the reasons for the finding pursuant to s.61DA(4) that it was not in X’s best interests for her parents to share parental responsibility equally for her.[123]
[123] Judgment, [193].
In the Second Initiating Application the Father sought interim and final orders that X spend ‘shared living time’ between the Mother and the Father.[124] When cross-examined at the Final Hearing the Father said that he considered that it was appropriate that X, then less than 10 months of age, to spend equal time with each of her parents. At the time the Father filed the Second Initiating Application the Father had only spent time with X on six supervised visits of an hour and a half to two hours between 6 August 2016 and 7 September 2016.[125]
[124] Second Initiating Application filed 1.9.16, Interim or procedural orders sought, Order 2; Final orders sought, Order 2; Judgment, [30].
[125] Transcript (30.4.18) P66:L25-P67:L21.
In the Further Amended Initiating Application filed on 31 October 2016 (Further Amended Initiating Application) the Father proposed interim and final orders whereby X spent increasing overnight time with the Father so that by the time X was 2 years old, she live with the Father 6 nights out of 14 nights.[126] When the Father was cross-examined in relation to the orders he sought in the Further Initiating Application, the Father said that at the time that he filed the Further Initiating Application he believed that the orders he was seeking were ‘child focused’. He also conceded that ‘in retrospect’ ‘it would have been too much time for X away from her mother at that time’.[127]
[126] Further Amended Initiating Application, Interim or procedural orders sought, Order2; Final orders sought, Order 2; Judgment, [31].
[127] Transcript (30.4.18) P68:L26-39.
In the Second Further Amended Initiating Application filed on 11 March 2018 (Second Further Amended Initiating Application) the Father sought final orders that X live with the Father until she starts school in 2021 in a four week cycle being: seven consecutive nights in weeks 1 and 2; and 4 consecutive nights in week 4. The Father also sought an order that each parent be permitted to take X on a 10 day holiday each year.[128]
[128] Second Further Amended Initiating Application, Final orders sought, Orders 2 and 3; Judgment [45].
During the interview conducted by Family Consultant Mr S on 5 March 2018 the Father told Mr S that he wanted to “work towards caring for X on an equal time basis” with the Mother.[129] This proposal was rejected by Mr S in the Family Report dated 14 Match 2018 (Family Report).[130] During the Family Report interview the Father also proposed that X attend two separate kindergartens, one in City L and the other in Melbourne.[131] This proposal was also rejected by Mr S in the Family Report.[132] After the Family Report was released the Father maintained his proposal that X live with him 7 days a fortnight in the Father’s 9 April 2018 Affidavit. The Father also proposed that X attend kindergarten, primary school and secondary school in City L.[133]
[129] Family Report, [3].
[130] Family Report, [54].
[131] Judgment, [137], [192(b)].
[132] Family Report, [53].
[133] Father’s 9 April 2018 Affidavit, [71], [72], [167].
The Father’s Outline of Case, filed on Friday 27 April 2018 sought orders that X spend from Thursday to Sunday with the Father for a period of 12 weeks (three nights); and from when X was three years old from Wednesday to Sunday until X started school (four nights).[134] This was the first occasion since the Father filed the Second Initiating Application on 1 September 2016 that the Father was prepared to concede that X would not spend equal time with him prior to commencing primary school in 2021. The Final Hearing commenced on Monday 30 April 2018.
[134] Judgment, [51].
In the Father’s Proposal, the Father sought orders that X spend time with the Father during term time until she attended four year old kindergarten each alternate week from Thursday to Sunday (three nights); and from 31 January 2020 until X started school from Wednesday to Sunday (four nights).[135] The Court ordered that X spend time with the Father during term time until X started school in 2021, each alternate Friday to Sunday (two nights) in accordance with the Mother’s Proposal.[136]
[135] Judgment, [66].
[136] Final Orders, Order 6(a); Judgment, [64(c)].
In relation to school holidays the Father sought three days in addition to his normal times with X until X turned 5.[137] The Father then sought half of all school holidays after X turned 5.[138] The Father also sought an option to take X for a two week holiday during the Christmas holidays upon providing the Mother with six weeks’ notice.[139] The Court ordered a gradual increase in the amount of time that X spent with the Father during the school holidays, in accordance with the Mother’s Proposal.[140] Pursuant to the Final Orders X will commence to spend half of the school holidays with the Father when X starts Grade 5 in 2026.[141]
[137] Judgment, [66(d)].
[138] Judgment, [66(e)].
[139] Judgment, [66(e)]
[140] Final Orders, Orders 6(c) and (d), 7; Judgment [50(e)(iv)-(vii)].
[141] Final Orders, Order 6(d); Judgment [50(e)(vii)].
The Father also sought an order that he be allowed to contact X every Tuesday night via Skype or other video call medium until the age of eight and thereafter X be allowed to communicate with the Father and other family members freely.[142] The Mother’s Proposal was adopted in the Final Orders.[143] It was ordered that commencing from 29 January 2021 and during each school term, the Father shall be able to communicate with X by Skype or other video medium each Tuesday at 6.30 pm for a period of up to 30 minutes.
[142] Father’s Outline of Case, Statement of Precise Orders Sought, Order 12; Judgment [51(c)].
[143] Final Orders, Order 6(b)(ii); Judgment [64(c)(ii)B].
The Father’s proposals in relation to changeovers is discussed in paragraphs 155 to 156 of the Judgment. The Mother’s Proposal for changeovers was adopted in the Final Orders.[144]
[144] Final Orders, Order 18; Judgment, [64(h)], [50(m)].
The Father sought orders that he be permitted to take X overseas for holidays from 2022.[145] The Father also sought an order that X be ‘removed from all watch lists’.[146] Orders were made in accordance with the Mother’s Proposal restraining the Father, his servants or agents from removing X from Australia and requesting that the Australian Federal Police place X on the Airport Watch List for a period of two years.[147] The Father was also restrained from applying for Country W residency or citizenship for X, or a Country W passport for X.[148]
[145] Judgment, [66(f)].
[146] Judgment, [51(f)]; Father’s Outline of Case, filed 27.4.18, Statement of Precise Orders Sought, Order 12.
[147] Final Orders, Orders 26-30; Judgment, [64(h)], [50(p)].
[148] Final Orders, Order 34. Judgment [64(h)], [50(p)].
Orders were made in accordance with the Mother’s Proposal that the Mother be permitted to travel interstate and overseas with X for a period of up to three weeks each year.[149] Orders were also made permitting the Mother to obtain an Australia passport for X without the consent of the Father.[150]
[149] Final Orders, Orders 22 and 23; Judgment [64(e)].
[150] Final Orders, Orders 31-33; Judgment [50(q)].
In relation to ‘Special Days’, the Final Orders adopted the Mother’s proposals for special days in the Mother’s Proposal, with some minor adjustments.[151]
[151] Final Orders, Orders 10-17; Judgment [50(e)], [50(f)], [64(e)(v) and (vi)] and [64(d)].
Significantly the Court made Orders that the Father was to forthwith enrol and complete a Men’s Behaviour Change Program and provide proof of completion to the Wife by 20 November 2020. In the event that the Father did not comply with these Orders, the Father’s time with X was to be suspended until he complied.[152] Reasons for these orders are set out in paragraphs 112 to 128 of the Judgment. These orders were made on the Court’s own initiative.
[152] Final Orders, Orders 19-21.
The Mother has prepared a table which contrasts the orders sought by the Father and the orders made by the Court. The table sets out in a summary form the foregoing discussion in relation to s.117(2A)(e).[153]
[153] Mother’s 7 November 2019 Affidavit, [44] and Annexure -13.
In relation to the costs reserved by Judge Bender on 20 April 2017, the circumstances leading to the filing of the Mother’s Contravention Application are discussed in paragraphs 34 and 35 and 39 to 41 of the Judgment. The Father was in default of the orders made on 28 November 2016 and the Mother was entitled to file the Mother’s Contravention Application and have Counsel briefed at the hearing on 20 April 2017.
In the Costs Submissions it is submitted:
C. Costs and the Course of the Proceedings
[…]
The first [hearing] related to a contravention application where a relatively small sum of approximately $1,318 had not been paid by [the Father] pursuant to the parties[’] property settlement. The [Father’s] explanation was that he had insufficient funds and that he had entered into an agreement to pay. A letter to that effect dated nearly 2 weeks prior to the hearing (7th April 2017) was attached to the parties[’] consent orders on that day.
[…]
It is submitted that in the circumstances no order for costs should be made.[154]
[154] Costs Submissions, p.3.
During the Final Hearing the Father was cross-examined in relation to his failure to pay the P Bank Debt. In the Judgment, I said:
145.[…][The Father’s]total failure to pay any form of child support stands against him. Almost one of the first things he did after the birth of X was to cease employment. Winding up his former business in order to be with his child is, at one level of analysis, understandable. But I find this was also interrelated at least in part with a desire to ensure that the Mother got as little as possible. This is well illustrated by his behaviour in relation to the P Bank Debt. I do not accept his self-serving explanations of why he has failed to discharge this relatively minor debt over so long a time. The Father has been well aware, because the Mother’s solicitors have repeatedly told him so, of the importance of this matter to the financial but perhaps more importantly emotional health of the Mother who has been greatly concerned about it. His insouciant failure to do so speaks against him.[155]
[155] Judgment, [145].
I therefore reject the submission made in the Costs Submissions in relation to the P Bank Debt and determine that the Father should pay the Mother’s costs of and incidental to the Mother’s Contravention Application reserved by Judge Bender on 20 April 2017.
In relation to the Mother’s costs reserved by Judge Bender on 30 October 2017, the circumstances leading to the filing and dismissal of the Father’s Contravention Application are discussed in paragraphs 42 and 43 of the Judgment.
In the Costs Submissions, the Father further submitted that:
The second [hearing] related to a contravention application brought by the [Father] that was dismissed for a failure to strictly comply with the Court Rules. Nevertheless the parties entered into make-up time consent orders for the [Father] and there was a further notation clarifying Christmas arrangements. [156]
[156] Costs Submissions, p.3.
The Mother was entitled to file a responding affidavit to the Father’s Contravention Application,[157] and to have Counsel briefed at the hearing on 30 October 2017. Contravention applications are applications with potentially serious consequences. The Mother has provided a summary of her response to the Father’s Costs Application in paragraphs 72 and 73 of the Mother’s 7 November 2019 Affidavit. The Father was not successful in relation to the Father’s Contravention Application. The Father was cross-examined during the Final Hearing in relation to the grounds of Father’s Contravention Application and I consider that the grounds for the Father bringing the contravention application were baseless or trivial.
[157] Mother’s Affidavit, filed 25.10.17.
The Mother has deposed that the time that she agreed for X to spend with the Father in the consent orders made on 30 October 2017, was not ‘make up time’ but additional days for X to spend with the Father.[158]
[158] Mother’s Trial Affidavit, filed 27.2.18, [64].
In these circumstances I reject the submissions in the Costs Submissions relating to the Father’s Contravention Application and determine that the Father should pay the Mother’s reserved costs of and incidental to the Father’s Contravention Application reserved by Judge Bender on 30 November 2017.
In the Costs Submissions reference is made to the Family Report in relation to s.117(2A)(f) of the Act. These submissions are also relevant in relation to the discussion of s.117(2A)(e) of the Act. The Costs Submissions state:
a. Absence of Preparedness to Compromise
[…]
[…] [the Mother] says it was not until 27th April that [the Father] was prepared to accept less than equal time with X once she commenced school. It should be noted that until then [the Father] was largely self-represented. Furthermore, the Family Report in the case was not released for consideration by the parties until 14th March 2018.[159]
[159] Costs Submissions, p.7.
In my view these submissions in relation to the Family Report are misconceived. The Father did not accept the recommendations in the Family Report (released on 19 March 2018),[160] preferring his own view point. This is clearly illustrated by the Father’s 9 April 2019 Affidavit wherein the Father maintained his proposal that X live with him 7 days in a fortnight and also proposed that X attend kindergarten, primary school and secondary school in City L.[161] None of these proposals previously met with approval by Mr S in the Family Report.[162]
[160] Judgment [47].
[161] Father’s 9 April 2018 Affidavit, [61], [71], [167].
[162] Family Report, [53]-[54].
Further, the following is stated in the Judgment:
93.The parties’ proposals had changed after being interviewed by Mr S for the Family Report. Therefore the recommendations in the Family Report were outdated. Mr S was cross-examined by both Counsel for the Mother and the Father and he ultimately recommended the Mother’s Proposal.[163]
[163] Judgment, [93].
The Costs Submissions contend that the Father was ‘largely unrepresented’ in the proceeding. As discussed in the Judgment and also in these Reasons for Judgment under the headings ‘Procedural History’, at a number of Court appearances after 1 September 2016 the Father was represented by Counsel. During the adjournment of the Final Hearing after the first two days of the Final Hearing, the Father retained Coote Family Lawyers. The parties’ also had the benefit of the Child Dispute Conference Memorandum to Court, dated 11 April 2017 (Section 11F Memorandum). The Father chose to wholly ignore the recommendations in the Section 11F Memorandum that X could, after a period of unsupervised day visits of six months, spend one overnight each week with the Father. The Father preferred his own viewpoint. This is clearly illustrated in the Father’s Affidavit filed on 13 April 2017[164] where the Father provided his response to the Section 11F Memorandum.[165] The Father deposed:
[164] Mother’s 7 November 2019 Affidavit, [35] and Annexure -5.
[165] Mother’s 7 November 2019 Affidavit, [35] and Annexure -5, Father’s Affidavit, filed 13.4.17, [103]-[106].
Response to Child Dispute Conference Memorandum
103.The family consultant recommends time spent with [the Father] for the next six months is the same as the time that has been spent since the last orders on November 9th 2016. [The Father’s] time with X in almost the last six month period has been two days a week from January, two full days one week and one full day plus 2hrs another day.
104. [The Father] seeks that the court grant overnights sooner than the consultant’s recommendations. He believes X will cope and adjust to this well.
[…]
106. Whilst [the Father] has done extensive research and understands the general assertion that developmentally 18 months is regarded as generally too early for a child to be separated overnight from the primary care giver. The following factors need to be considered:
106.1 Each child is an individual. […]
106.2 X has also had to adjust to sleeping in several different locations from a very young age […]
106.3 Other factors include the parent’s ability to Co-parent effectively. […]
[…]
106.8Given all these factors [the Father] believes that blanket approach, although taken on board by [the Father], from the family consultant does not truly reflect X or her parents (sic) abilities to handle her best interest.
106.9 [The Father] believes [the Mother] is also using the research and general assumptions as a means to prevent more contact until she can succeed in her attempts to have [the Father], removed from her life […]
106.10 [The Father] believes that it is in X’s best interest to have parenting happen on a more equal basis as soon as possible. [The Father] asserts that he is more than qualified and capable of giving X a loving and supportive home life.[166]
(Emphasis added)
[166] Mother’s 7 November 2019 Affidavit, [35] and Annexure -5, Father’s Affidavit, filed 13.4.17, [104]-[106].
The Father persisted in pursuing the orders sought in his Further Amended Initiating Application and the Second Further Amended Initiating Application, which sought that X spend between six to seven nights consecutively with him each fortnight. The Father persisted with his ‘equal shared care’ application until the last business day prior to the Final Hearing on Friday 27 April 2018, when he filed the Father’s Outline of Case. Up until that point in time the Father had been insisting that X have equal time with both parents.
(f) Whether any party to the proceeding has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer
The Mother’s 7 November 2019 Affidavit in paragraphs 27 to 35 provides an account of the Mother’s attempts to settle the proceeding with the Father. The Mother deposed that the Father:
[…] rejected every parenting plan I put forward mainly because he insisted on “equal time”. He did so despite expert advice which I included in some parenting plans, and being reminded on several occasions that equal time would not be possible when X started school. The email exchanges set out below shows an unwillingness to negotiate at all, totally unrealistic demands for his time spent with X and a determination on his part not to compromise. […][167]
[167] Mother’s 7 November 2019 Affidavit, [27].
The Mother then produced copies of:
(a) An offer sent to the Father on 9 December 2016 and the Father’s response on 9 January 2017. This correspondence also included extracts from research relating to post separating parenting arrangements particularly in relation to young children.[168]
(b) An offer sent to the Father on 7 February 2017 and the Father’s response on 12 February 2017;[169]
(c) A response from the Father dated 20 February 2017;[170] and(d) An offer sent by the Mother on 20 July 2017 and the Father’s response dated 21 July 2017.[171][168] Mother’s 7 November 2019 Affidavit, [28] and Annexure -8.
[169] Mother’s 7 November 2019 Affidavit, [29]-[30] and Annexures -9 and -10.
[170] Mother’s 7 November 2019 Affidavit, [31] and Annexure -11.
[171] Mother’s 7 November 2019 Affidavit, [32]-[33] and Annexure -12.
The Costs Submissions are critical of the approach taken by the Mother in relation to her submissions concerning s.117(2A)(f) of the Act, contending that:
[…] the [Mother] refers to a range of selective email exchanges going back 2-3 years and without providing any real context to the exchange in terms of relevant circumstances.
It is submitted that without all surrounding documentary exchange from each party it would be impossible to draw conclusions as to either party’s reasonableness or otherwise as to the relevant issue let alone form the basis of a costs order.
Moreover the number of issues in the case was, for the parties, far greater than that spelt out in the judgment in short form at paragraph 2. […]
[…]
As to paragraph 34 [the Mother] says it was not until 27th April 2018 that [the Father] was prepared to accept less than equal time with X once she commences school. It should be noted however that until then the Father was largely self-represented. Furthermore, the Family Report in the case was not released for consideration by the parties until the 14th March 2018.[172]
[172] Costs Submissions, pp.6 and 7.
In relation to the selection of emails and the failure to provide the surrounding circumstances and context of the emails, the Mother has previously filed affidavits with this correspondence annexed and has deposed to the context of the correspondence prior to the commencement of the Final Hearing.[173]
[173] Mother’s Affidavit, filed 2 October 2020, [63].
In the discussion in relation to s.117(2A)(e) of the Act, I have already indicated that the submission in relation to the Family Report in the Costs Submissions is misconceived.[174] I refer to and rely to paragraphs 156 to 160 of these Reasons for Judgment.
[174] Costs Submissions, p.7.
It is evident from the correspondence annexed to the Mother’s 7 November 2019 Affidavit that the Mother, with the assistance of Mr Petrie, made bone fide efforts to resolve the proceedings. The correspondence also indicates an almost desperation to try to resolve the proceedings to avoid legal costs. The correspondence also demonstrates the Father’s belittling and demeaning attitude towards the Mother and also the Father’s arrogance. It is also evident that until immediately prior to the commencement of the Final Hearing, when the Father filed the Father’s Outline of Case on 27 April 2018, the Father was insisting that X spend equal time with each of her parents. This was notwithstanding that the Section 11F Memorandum had not recommended equal time and the reality that X would not be able to spend equal time with both of her parents once she commenced school in 2021, due to the distance between the parties’ homes in Melbourne and City L. I determine that this was a wholly unreasonable approach for the Father to have adopted. My view is informed by the affidavit material relied upon by the Father at the Final Hearing and the cross-examination of the Father. From the cross-examination it was apparent that the Father had adopted an ‘I know what is best for Xs’ approach to the proceeding. No one else was going to persuade the Father from his view point. In the Judgment I determined:
160.[…] The Father’s conduct and the orders that he has sought during the course of this proceeding do not evidence any understanding of the developmental needs of X.[175]
[175] Judgment, [160].
Therefore, regardless of the various other issues that needed to be determined, the Father’s unreasonable pursuit of equal time’ with X made this a case that the Mother could not settle and from the commencement of this proceeding, when the Father was accusing her of ‘parental alienation’, there was nothing that she could do to avoid the Father’s unreasonable demands but engage lawyers and proceed with the Final Hearing. It was not until immediately before the first day of the Final Hearing did the Father showed any indication that he would change his unreasonable stance on his ‘equal time’ position.
In the Mother’s 18 July 2020 Affidavit the Mother deposed to receiving an offer of settlement from Coote Family Lawyers, dated 13 June 2018, during the adjournment of the Final Hearing.[176] The Father’s proposal included: the parties have equal shared parental responsibility, save that the Mother have sole parental responsibility for X in relation to all education related decisions; X spend time with the Father from 8.30 am Wednesday to 5.00 pm Sunday (4 nights) each fortnight commencing 18 December 2018 and at any other time the Father gave the Mother 7 days’ notice in writing for a period of ‘no less than two hours as agreed and in default of agreement between 4.30 pm and 6.30 pm’; School holidays to be shared on a week about basis (7 nights); changeovers to be at the X’s school, D Train Station and at the Father’s residence in City L. The Father’s proposal did not include: the time X would spend with the Father when she started school or on Father’s or Mother’s Day; or any proposals in relation to passports, watch lists or interstate and overseas travel.
[176] Mother’s 18 July 2020 Affidavit, [12]-[14] and Annexure -3.
The Mother rejected the Father’s offer referred to in the previous paragraph and made an offer addressed to Coote Family Lawyers, dated 13 July 2018.[177] The Mother’s proposal was more favourable than the Final Orders in that: the Father was offered joint parental responsibility apart from education and health issues; the Mother offered time for the Father to spend time with X every Tuesday after school; and did not require the Father to attend a Men’s Behaviour Change Program.
[177] Mother’s 18 July 2020 Affidavit, [15]-[17] and Annexure -4.
The Father (again self-represented) reacted angrily to the Mother’s proposal referred to in the previous paragraph with correspondence, dated 20 July 2018 to Mitchell Family Lawyers that included: ‘I appreciate that you have had to make major efforts for your clients (sic) immobility and unrealistic views’. The Father then included with his correspondence proposed orders.[178]
[178] Mother’s 18 July 2020 Affidavit, [18] and Annexure -5.
Mitchell Family Lawyers replied to the Father on 31 July 2018 with correspondence which stated:
19.[…] We refer to your correspondence of 20 July 2018, attaching your “Proposed Minute of Consent Orders”. We are instructed to note:
• Your proposed orders are on the same terms as set out in your Outline of Case filed 27 April 2018, save that you have removed the Order enabling your partner, Ms J, to communicate on your behalf; and
• You have retracted many of the concessions made by you as per your offer of 13 June 2018.
Accordingly, we are instructed to reject your proposal.
If you wish to reconsider your position, our client remains willing to negotiate in a meaningful manner prior to the Trial on 20 and 21 August 2018.
This letter shall be produced upon the question of costs.[179]
[179] Mother’s 18 July 2020 Affidavit, [19] and Annexure -6.
As discussed in relation to s.117(2A)(e) Orders were made that in substance adopted all of the orders sought in the Mother’s Proposal.
(g) Such other matter as the court considers relevant
I consider the Father’s attitude towards the Mother and Mr Petrie to have been a significant factor motivating the Father’s unreasonable behaviour in this case. The Judgment stated:
79.The Father’s anger and dislike of the Mother was palpable in the giving of his evidence. His attempts to explain his conduct towards the Mother served to reinforce his threatening and intimidating behaviour towards the Mother and indicated that he had not in fact taken responsibility for his conduct, despite his protestations to the contrary. The Father demonstrated a flippant attitude towards the First Intervention Order Breaches and the Second Intervention Order Breaches. This attitude was replicated by Ms J in her evidence.[180]
[…]
89.The Father made extremely serious allegations against Mr Petrie in his affidavit material and also when being cross-examined by Counsel for the Mother. The Father’s anger towards Mr Petrie was also very evident in his evidence and was exemplified by the accusations made concerning Mr Petrie’s conduct. […][181]
[180] Judgment, [79].
[181] Judgment, [89].
CONSIDERATION AND CONCLUSION
The first question to be addressed is whether there are circumstances justifying a costs order against the Father in favour of the Mother.
I consider that pursuant to s.117(2) of the Act that there are circumstances that justify making a costs order against the Father in favour of the Mother. In considering what order should be made against the Father I have taken into account the matters discussed above in relation to ss.117(2A)(a), 117(2A)(c), 117(2A)(e), 117(2A)(f), and 117(2A)(g) of the Act.
This then leads to the second question, namely, how should those costs be calculated, on the usual party/party basis, on a lawyer and client basis or on an indemnity basis?
I have considered the authorities discussed under the heading ‘Relevant Legal Principles’. I am bound by the Full Family Court decision in Kohan & Kohan,[182] which has recently beenconsidered by the Full Family Court in Stasiuk & Guild.[183] I acknowledge that these proceedings have caused the Mother and her family significant distress over a number of years. However, I am unable to conclude that there was any feature about these proceedings that would make it of an ‘exceptional kind’ that would warrant departing from the ordinary rule that an order for party/party costs should be made.[184]
[182] [1992] FamCA 116; (1993) FLC 92-340.
[183] [2021] FamCAFC 62.
[184] Stasiuk & Guild [2021] FamCAFC 62, [8] and [17].
In these circumstances I determine that the Father should pay the Mother’s costs of the proceeding on a party/party basis from the time the Father commenced the proceeding.
I intend to make Orders that:
(a) The Father pay the Mother’s party/party costs of the proceedings, including the Mother’s costs reserved on 27 April 2017 and 30 October 2017, with the proceedings to be deemed to have commenced with the filing of the Father’s Initiating Application on 16 June 2016 (Costs).
(b)In the event of the parties being unable to agree upon the quantum of the Costs by 4.00pm on 8 July 2021, pursuant to r.21.02(2)(c) of the Rules, the Costs be referred for taxation on a party/party basis under Chapter 19 of the Family Law Rules.
(c)There be ancillary orders for the assessment of Costs.
(d)The Response be dismissed.
Orders will be made accordingly.
I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton QC. Associate:
Dated: 10 June 2021
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