Costa & Drake
[2021] FamCA 202
•19 April 2021
FAMILY COURT OF AUSTRALIA
Costa & Drake [2021] FamCA 202
File number(s): SYC 4757 of 2019 Judgment of: MCCLELLAND DCJ Date of judgment: 19 April 2021 Catchwords: FAMILY LAW – COSTS – Review of a Senior Registrar’s decision – Where the father brought an application for the parties and child to undergo parentage testing and for a declaration for parentage to be made in respect to the child – Where the mother made an application for the father to pay her costs of and incidental to that parentage application on an indemnity basis following the Senior Registrar dismissing the parentage application – Where the Senior Registrar further dismissed the mother’s costs application – Where the mother seeks a review of the Senior Registrar’s decision to dismiss her application for costs on an indemnity basis – Where the father’s application for parentage testing had no reasonable prospects of success – Orders made for the father to pay the mother’s costs of and incidental to the father’s parentage application and this review application on a party/party basis as assessed or agreed. Legislation: Family Law Act 1975 (Cth) ss. 37A, 69P, 69W, 69VA, 117
Family Law Rules 2004 (Cth) r. 18.10(1)
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
D & D (Costs) (No. 2) (2010) FLC 93-435
Feiteiro & Feiteiro [2019] FamCA 647
Henley & Henley (2019) FamCA 101
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Hawkins & Roe (2012) 47 Fam LR 526
I and I (No 2) (1995) FLC 92-625
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664
Munday v Bowman (1997) FLC 92-784
Nada & Nettle (Costs) (2014) FLC 93-612
Penfold v Penfold (1980) 144 CLR 311
Re C(No 2) (1992) FLC 92-284
Schwarz, C.L. and Schwarz, G.J. (1985) FLC 91-618
Teasdale & Rossell & Anor [2021] FCCA 58
TNL & CYT (2005) 33 Fam LR 167
Wrensted & Eades (2016) FLC 93-697
Number of paragraphs: 68 Date of hearing: 30 March 2021 Place: Sydney by web conference Solicitor for the Applicant: Mr Lindo of Macarthur Law Group Solicitor for the Respondent: Ms Hennigan of Reid Family Lawyers Solicitor for the Independent Children's Lawyer: Ms Webber of Legal Aid NSW ORDERS
SYC 4757 of 2019 BETWEEN: MR COSTA
Applicant
AND: MS DRAKE
Respondent
LEGAL AID NSW SYDNEY CENTRAL FAMILY LAW
Independent Children’s Lawyer
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
19 APRIL 2021
THE COURT ORDERS THAT:
1.Mr Costa (“the father”) pay Ms Drake’s (“the mother”) legal costs of and incidental to his Application for orders for parentage testing and a section 69VA declaration and, in respect to this Application for review, in respect to the period subsequent to 24 November 2020 in accordance with the scale prescribed by the Family Law Rules 2004 (Cth).
2.The costs payable by the father in respect to Order 1 are to be paid within seven (7) days of agreement or assessment of the quantum of those costs.
THE COURT NOTES THAT:
A.The father has been ordered to pay costs in this matter as a result of him continuing with an Application for orders requiring the mother and the child to undergo parentage testing when his Application had no reasonable prospects of success in circumstances where the mother has not disputed that the father is the biological father of the child and where no plausible evidence has been presented to cast in doubt the father’s paternity of the child.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Costa & Drake has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McClelland DCJ:
INTRODUCTION
This decision concerns an Application in Case filed on 8 March 2021 by Ms Drake (“the mother”) seeking to review orders made by Senior Registrar McGrath on 16 February 2021 dismissing the mother’s Application for Mr Costa (“the father”) to pay her costs (“the costs Application”) on an indemnity basis of and incidental to the Application made by the father for parentage testing and a declaration of paternity in respect to X (“the child”).
The father has subsequently sought a review of the orders made by Senior Registrar McGrath on 16 February 2021 dismissing the father’s Application for parentage testing and declaration of paternity (“the parentage Application”). At the hearing of this matter, on 30 March 2021, the father did not press that aspect of his Application nor did he press for an order requiring the father’s name to be included on the child’s birth certificate.
In circumstances where a review of a Registrar’s decision is a hearing de novo, I have made an order for the father to pay costs of the mother incurred on a party/party basis in respect to legal work undertaken from 24 November 2020, being the date that the father’s parentage Application was set down for hearing as a discrete issue. For reasons which I will expand upon further below, it was apparent that the father’s parentage Application had no reasonable prospects for success in circumstances where, at no stage, has the mother disputed that the father is the biological father of the child and, further, in circumstances where the father has not presented any plausible evidence that could reasonably cast doubt on that fact.
RELEVANT BACKGROUND
In 1977, the mother was born. She is currently aged 43 years.
In 1981, the father was born. He is currently aged 39 years.
In 2016, the parties married.
On 15 November 2018, the parties separated and, in January 2021, the parties divorce took effect.
In 2019, the child was born. He is currently aged two (2) years.
On 22 July 2019, the father filed an Initiating Application seeking, inter alia, that the parties and the child undergo DNA parentage testing and for a declaration of paternity to be made pursuant to s 69VA of the Family Law Act 1975 (Cth) (“the Act”): see Orders 8, 9, 10 and 11 of the Initiating Application.
On 24 November 2020, a Registrar of this Court made orders for the parties’ respective Applications, other than in respect to the father’s parentage Application, to be listed for a procedural hearing on 1 March 2021. Those orders noted “the father is pressing his application for paternity test”. The orders included a further notation that:
The Application for a DNA test will be listed before the Senior Registrar and directions are made under cover of separate orders.
By separate orders, also made on 24 November 2020, the Registrar listed the father’s parentage Application before a Senior Registrar of the Court at 10am on 16 February 2021.
On 16 February 2021, Senior Registrar McGrath made the following orders:
1.Orders 8, 9, 10 & 11 of the orders sought in the Amended Initiating Application filed 29 January 2021 is dismissed.
2. The Respondent’s oral application for actual costs of approximately $15,000 is dismissed.
3. The Respondent’s oral application for costs on an indemnity basis is dismissed.
…
APPLICATIONS
The mother sought that orders be made in accordance with those set out in her Application in a Case filed 8 March 2021, as follows:
1. That the applicant father pay the respondent mother’s legal costs of and incidental to his application for orders for parentage testing and a section 69VA declaration, on an indemnity basis.
2. In the alternative to Order 2. herein, that the applicant father pay the respondent mother’s legal costs of and incidental to his application for orders for parentage testing and a section 69VA declaration, in accordance with the scale prescribed by the Family Law Rules.
3. That the applicant father pay the respondent mother’s legal costs of this Review application. …
The father sought that orders be made in accordance with those set out in his Response to Application in a Case filed 26 March 2021, as follows:
1. That the Applicant's Application in a Case be dismissed, being orders 1-3 sought.
2. Within 7 days from the date of these orders, a DNA parentage test be carried out on the father, the mother and the child at the B Clinic located at C Street, Suburb D, NSW for the purposes of obtaining information to assist in determining the parentage of the child pursuant to section 69W of the Family Law Act 1975 (Cth).
3. Contemporaneously with Order 2, the mother and the father shall do all acts and sign all documents necessary for them and the child to carry out the DNA parentage testing.
4. That both parents be equally responsible for the costs of the DNA parentage testing.
5. In the event that the DNA testing pursuant to order 4 find the Respondent to be the Father of the child, then a declaration of paternity be made pursuant to section 69VA of the Family Law Act 1975 (Cth).
6. An order that the Father's name, Mr Costa be recorded as the father of the child X born in 2019, as the father of the child.
As noted, following discussion between the legal representative for the father and myself as the presiding judge, the father did not press the orders sought in his Response to Application in a Case filed 26 March 2021 other than in respect to proposed order 1.
The Independent Children’s Lawyer did not seek to be heard in respect to the parties’ respective Applications and was excused from the proceedings.
EVIDENCE
The mother relies upon the following documents:
(a)Application in a Case filed 8 March 2021;
(b)Affidavit of the mother filed 8 March 2021; and
(c)Written submissions filed 26 March 2021.
The father relies upon the following documents:
(d)Response to Application in a Case filed 26 March 2021;
(e)Affidavit of the father filed 26 March 2021; and
(f)Written submissions filed 26 March 2021.
THE LAW – CONCEPTS AND PRINCIPLES
Section 37A of the Act relevantly sets out delegation of powers to Registrars. Sub-sections 37A(9) and (10) are as follows:
(9)A party to proceedings in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.
(10) The Court may, on application under subsection (9) or of its own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised.
Rule 18.10(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing, in other words proceeds by hearing de novo. The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley (2019) FamCA 101 at [7].
Parentage Application
Relevant to these proceedings, s 69P of the Act creates a presumption of paternity arising from marriage such that:
(1)If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband.
Section 69W of the Act provides that:
Orders for carrying out of parentage testing procedures
(1) If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child.
(2) A court may make a parentage testing order:
(a) on its own initiative; or
(b) on the application of:
(i) a party to the proceedings; or
(ii) an independent children's lawyer representing the child's interests under an order made under section 68L.
(3) A parentage testing order may be made in relation to:
(a) the child; or
(b) a person known to be the mother of the child; or
(c) any other person, if the court is of the opinion that, if the parentage testing procedure were to be carried out in relation to the person, the information that could be obtained might assist in determining the parentage of the child.
(4) A parentage testing order may be made subject to terms and conditions.
(5) This section does not affect the generality of section 69V. (emphasis added)
As noted by Judge Lapthorn in Teasdale & Rossell & Anor [2021] FCCA 58 (“Teasdale”) at [16]:
… In order to enliven the discretionary power of the court an applicant needs to overcome two hurdles: firstly the parentage of the child must be a question in issue in the substantive proceedings; and secondly there must be evidence placing the parentage of the child in doubt.4
4 See approaches adopted in: In the Marriage of Lee and Tse (2005) Fam LR 167 and Brianna & Brianna [2010] FamCAFC 97
The first of those cases referred to by his Honour in Teasdale is also published as TNL & CYT (2005) 33 Fam LR 167. Relevantly, in that case, the Full Court at [29] and [33] stated:
29.The Court’s power to make an order for parentage testing is clearly subject to the parentage of the child being ‘a question in issue’ in proceedings under the Act. To satisfy this threshold question, the authorities suggest that the applicant must overcome two hurdles. First, parentage must be relevant to the nature of the proceedings. In G v H (1993) FLC 92-432, the Full Court observed:
“… [A] Court must first be satisfied that the parentage of a child is in issue in proceedings under the Family Law Act. The proceedings, which are a necessary precondition, may, for example, involve the matter of child maintenance, custody or access in which the question of parentage is an issue”.
...
33.The second component of the threshold question is that there must be evidence which places the parentage of a child in doubt: G v H (supra), OP and HM (2002) FLC 98-017 (in Australian Child Support Cases 1998-2003). In the former case, the Full Court adopted the formulation by the trial Judge, Bell J, regarding the occasions when the Court might exercise its discretion under s 69W (formerly s 66W):
"I cannot envisage a situation where the Court will order parentage testing merely because it is requested to do so. In my view an applicant must have an honest, bona fide and reasonable belief as to the doubt. An objective test is not to be applied, for the evidence in such applications is seldom (if ever) sufficient to enable the Court to come to any objective conclusion, and if it were, parentage testing orders would not be necessary, but the Court will objectively assess the circumstances giving rise to the applicant's belief” (emphasis added).
(As per original)
As previously noted, the mother has not at any stage disputed that the father is the biological father of the child and no plausible evidence has been presented that casts any doubt on that fact. The Court does not order parentage testing merely because it is requested to do so.
Costs Application
Section 117 of the Act sets out the basis upon which the Court is empowered to award costs. That section relevantly 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.
(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), (5) and (6) 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.
(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.
Those provisions make clear that, while the general rule in family law proceedings is that each party bears his or her own costs, the Court may order a party to pay the costs of another where there are circumstances justifying the making of such an order.
The considerations set out in s 117(2A) of the Act must all be taken into account and balanced in deciding whether or not to order a party to pay the costs of another: see I and I (No 2) (1995) FLC 92-625 at 82,277 (per Nicholson CJ, Ellis and Buckley JJ). 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: see Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at [24] (per Strickland J).
As such, a litigant seeking a costs order must establish that the justice of the case requires an order for costs, by reference to the non-exhaustive list of statutory considerations set out in s 117(2A) of the Act, before such an order is made. Although the applicant for costs must establish circumstances which would justify such an order, it is not the case that a costs order can only be made in what has been described as “a clear case”: see Penfold v Penfold (1980) 144 CLR 311 at 315 (per Stephen, Mason, Aickin and Wilson JJ).
Accordingly, there is “nothing to prevent any factor being the sole foundation for an order for costs” being made: see Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [42] (per Kay, Warnick and Boland JJ).
There is some controversy as to whether a different standard applies in considering the issue of costs in respect to property proceedings on the one hand and parenting proceedings on the other.
In Hawkins & Roe (2012) 47 Fam LR 526, the majority (May and Ainslie-Wallace JJ) said at 549:
[147] While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.
However, in Wrensted & Eades (2016) FLC 93-697 (“Wrensted & Eades”), the Full Court (Bryant CJ, Finn and Strickland JJ) expressed some concern with that analysis if it was to be construed as establishing extra-legislative guidelines or criteria for the making of a costs order in parenting cases. In that respect the Full Court said at 81,153:
[103] … However if the majority in Hawkins & Rowe, by the use of the words “the occasions on which such an order should be made in a parenting dispute should have some particular features”, were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion (Nguyen v Nguyen 169 CLR 245 at 268-270; Gett & Tabet (2009) ALR 504 at [261]-[301] especially at [294]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 per Heydon J at [84] and [85]; F Firm & Ruane and Ors (2014) FLC 93-611) at [163])
I respectfully agree with the reasoning of the Full Court in Wrensted & Eades in finding that there is no distinction in the legislative considerations that the Court is required to have regard to in respect to an Application for costs in parenting proceedings, as opposed to property proceedings.
CONSIDERATION
The financial circumstances of each of the parties to the proceedings
The father has presented evidence that he works in several part-time jobs. He attests to having a gross salary of $500 per week. The mother questions whether the father has accurately stated the full amount of his average weekly income. Nevertheless, for the purpose of these proceedings, I accept that the father does in fact receive a gross weekly salary of $500 per week.
I accept, in those circumstances, that an order requiring the father to pay the mother’s costs would present some hardship. However, in circumstances where the mother is solely responsible for meeting the needs of both herself and the child, I am also satisfied that the cost she has incurred in responding to this aspect of the father’s Application, being the parentage Application, would similarly present a hardship to her.
In Nada & Nettle (Costs) (2014) FLC 93-612, the Full Court held at [11] that “a party [being] 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”.
Despite being satisfied that an order for costs would present a hardship to the father, for reasons which I set out below, I am of the opinion that such an order should nonetheless be made.
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
The father has a grant of legal aid which is specified as being:
… Client’s matter SYC4757/2019 is next listed for an interim hearing (via telephone) on 1 March 2021 at the Family Court of Australia (Sydney). Client needs a Country F speaking Solicitor and/or Interpreter.
(Emphasis added) (see annexure B to the Affidavit of the father filed 26 March 2021)
In circumstances where the grant of legal aid is dated 18 December 2020, that is the date postdating the orders made on 24 November 2020, and in circumstances where those orders, made on 24 November 2020, listed the father’s parentage Application for hearing, as a separate and discrete issue to be heard on the 16 February 2021, I am not satisfied that the grant of legal aid, as set out in annexure B to the Affidavit of the father filed 26 March 2021, applies to this aspect of the proceedings. As noted, the grant related to a procedural hearing which was to occur on 1 March 2021 in respect to the father’s substantive application other than his parentage Application.
However, for completeness, I can indicate that, even if I am wrong in that determination, I would nonetheless have made an order for costs against the father for the reasons which I set out below. In that respect, I note that in Schwarz, C.L. and Schwarz, G.J. (1985) FLC 91-618, the Full Court at 80,002 stated that “[t]he fact that the wife has few assets and is in receipt of legal aid is not by itself a barrier to the award of costs. It is, of course, a factor to be taken into account under sec. 117(2A)(b)”.
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
This is the most significant consideration in my decision to make an order for the father to pay the mother’s costs.
As noted, the two hurdles that the father was required to overcome in order to succeed in his parentage Application for parentage testing are:
(1)The parentage of the child must be a question in issue in the substantive proceedings; and
(2)There must be evidence placing the parentage of the child in doubt.
As noted by the Full Court in Re C(No 2) (1992) FLC 92-284 at 79,104, the question of paternity is “a medical issue rather than a legal issue”. The mother has not at any stage put the issue of the father’s paternity in issue. The fact that the mother opposes the father’s name being recorded on the child’s birth certificate and, further, seeks that the father not be involved in the child’s life has not put that medical issue in question in these proceedings. She accepts that the father is the biological father of the child.
The basis upon which the father has cast doubt on his paternity of the child is regrettable, and, understandably, distressing to the mother. In that respect, at paragraph 14(g) of his Affidavit filed 26 March 2021, the father states as follows:
The last time we had sexual relations was in or about 20 June 2018. On this occasion in the morning, she [the mother] said words to the following effect “Let’s make love, I am fertile now.” I then replied by saying words to the following effect “I am not a robot to be turned on and off.” She then replied by saying words to the following effect “If you don’t, I will go out and make love to someone else” She left and went out for about one hour. We made love later that day.
(As per original)
In response to my suggestion that, even accepting the father’s evidence that the mother left his company for approximately one (1) hour on 20 June 2018, and in circumstances where the parties were, at the time, in a foreign country, the conclusion drawn from the father’s evidence is one which is implausible. In that respect, it is implausible that the mother would have left the apartment in which they were staying to meet a random stranger and engage in sexual intercourse for the purpose of her becoming pregnant prior to returning to the parties’ then accommodation.
The response of the solicitor for the father to my suggestion that the father’s conclusion was one which was implausible was to purport to give evidence from the bar table that, based on his previous travels to Country F, he was in a position to state that Country F men are partial to Australian women and, on that basis, he contended that the contention that the mother possibly became pregnant to another unknown man during that one hour period is plausible.
This submission was made despite the mother’s sworn evidence that, during the period of her marriage to the father, she only had sexual relations with the father and no other man. No credible evidence has been presented by the father that in any way casts doubt in respect to the credibility of the mother’s evidence in that respect.
Even if, by some stretch, the Court could reasonably take judicial notice of such unqualified opinion offered by an advocate from the bar table, the father’s contention that the mother may have been impregnated by another man, as he described in paragraph 14 (g) of his Affidavit, is entirely implausible and, with respect, the fact that the father and his lawyer advanced such a proposition does them no credit.
In summary and conclusion on this issue, the mother has not disputed the paternity of the child and no evidence has been presented that casts doubt on the father’s paternity of the child.
Accordingly, the father’s application for parentage testing was doomed to fail and it should not have been pressed. It is to be noted that the father’s application for a declaration as to parentage was conditional upon the parentage testing confirming that he was the father of the child. As the father had no reasonable prospects of succeeding in obtaining an order for parentage testing, it is necessarily the case that his further application for a parentage declaration based upon an affirmative test must necessarily have been doomed to fail.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
The solicitor advocate for the mother contends that a relevant factor to the Court’s consideration in this matter is the father’s failure to comply with the timetable set out in the orders made on 24 November 2020 to which I have earlier referred. In reply, the father, through his solicitor advocate, contends that he failed to comply with the relevant timetable as a result of not being able to access the relevant directions on the Commonwealth Courts Portal, the electronic portal used by the Court.
It has not been necessary to determine whether the father’s oversight was or was not justified. I am satisfied that the father’s failure to comply with the relevant timetable has not resulted in additional cost consequences for the mother.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
As earlier noted, the father was wholly unsuccessful in respect to his parentage Application.
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
This consideration is not relevant to these proceedings.
Such other matters as the Court considers relevant
The father acknowledged that the reasons for him seeking orders in his parentage Application, have been motivated, in part, by his desire to have his name recorded on the child’s birth certificate which can, in turn, according to the father, be relied upon as an additional reason supporting his application to immigrate to Australia.
The mother contends that the father’s actions in doing so constitute an abuse of process which, among other things, justifies an order for costs on an indemnity basis.
Comparatively, the father contends that his acknowledged conduct is justifiable in circumstances where he is seeking to remain in Australia for the purpose of establishing a meaningful relationship with the child and being a part of the child’s life.
While uncomfortable with the fact that the father has, at least in part, been motivated to press for orders for parentage testing and a declaration of parentage for the purpose of supporting his immigration application, it has not been a factor that I have considered in determining that the father should meet the costs of the mother. Further, for reasons which I subsequently explain, it is not a consideration that, in my view, justifies an order for indemnity costs.
AMOUNT OF COSTS
The mother seeks an order the father to pay her costs on an indemnity basis. The primary reason advanced by the mother is that the father had no reasonable prospects of success and, properly advised and acting reasonably, should have known that he had no reasonable prospects of success and, in those circumstances, it can reasonably be inferred that he pressed his parentage Application for an ulterior purpose. The mother further contends that the father made unjustified allegations against her which, in itself, justifies the making of an order for indemnity costs.
The Full Court, in D & D (Costs) (No. 2) (2010) FLC 93-435 at [26]–[ 28], conducted a useful review of authorities dealing with the issue of indemnity costs in the following terms:
26. In Limousin & Limousin (Costs) [2007] 38 FamLR 478, the Court reviewed the authorities in relation to indemnity costs. Reference was there made to the judgment of the Full Court in Kohan and Kohan (1993) FLC ¶92-340. It was recorded at 79,614 (citations omitted) in which it was said that:
“The intent of s 117(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. By O 38 r 2, the provisions of O 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. O 38 r 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. 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) [1983] 2 NSWLR 354]; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Hobartville Stud v Union Insurance Co (1991) 25 NSWLR 358 at 368–70.
Indemnity costs orders are still an exception in this and other jurisdictions.
27. The Court in Limousin (supra) also referred to the judgment of Shephard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 upon which learned Counsel for the Wife relies in support of the present application. Shephard J said in Colgate-Palmolive (supra) (at 256):
“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 …”
28. Reference was made to the later decision of the Full Court of Yunghanns v Yunghanns (2000) FLC ¶93-029 in which is was said (at 87,471, par 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.”
In Munday v Bowman (1997) FLC 92-784 at 84,660, Holden CJ drew from the decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 in providing some examples of circumstances that might warrant the exercise of discretion to award indemnity costs as including:
(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] FCA 202; [1988] 81 ALR 397.])
(b) Making allegations of fraud, knowing them to be false, and the making of 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 Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993)).
(e) An imprudent refusal of an offer to compromise [see Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664].
In this matter, I am satisfied that the father, having been properly advised, would have appreciated that he had no reasonable prospects of succeeding with his parentage Application for the reasons which I have set out above.
I am further satisfied that the father has made allegations which ought never to have been made. That is, calling into question his paternity of the child in circumstances where it is based on an implausible possibility of the mother, during a potential window of just one (1) hour, engaging in intercourse with an unknown man in a foreign country when that has been specifically denied by the mother.
However, the father has a legitimate dispute with the mother concerning his desire to be recorded as the child’s father on the child’s birth certificate. The mother contends that the father is seeking that outcome for the purpose of advancing his immigration application to remain in Australia. The father acknowledges that purpose to be one of the reasons why he is seeking to be recorded on the child’s birth certificate. As noted, however, he contends that his motivation in taking those steps is so that he can establish a meaningful relationship with the child.
These issues and the sincerity of the father’s intention in that respect will be matters determined at final hearing. In those circumstances, and in the context of what has been an abridged process in which the parties were not the subject of cross examination, I am not comfortably satisfied that the circumstances of this case justify an order for indemnity costs.
The reasons which I have set out, however, I am of the opinion that it would be unfair for the mother to be expected to meet the totality of her costs in circumstances where she has been required to respond to an Application commenced by the father or, more specifically, pursued by the father in the period subsequent to 24 November 2020, at which time the father’s parentage Application was listed for hearing as a separate issue.
Accordingly, the orders I make are for the father to pay the costs of the mother on a party/party basis in respect to work undertaken in respect to his parentage Application in the period subsequent to 24 November 2020. To avoid doubt, that includes the costs of the mother’s review application which was heard on 30 March 2021 and which is the subject of this decision.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 19 April 2021
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