CRAWFORD & SISINIS

[2015] FamCA 264

FAMILY COURT OF AUSTRALIA

CRAWFORD & SISINIS [2015] FamCA 264

FAMILY LAW – COSTS – where father presented a substantially different case on first day of trial – adjournment granted to allow father to present further evidence – mother seeks costs thrown away on a party and party basis – financial circumstances of the father – conduct of the parties – father ordered to pay portion of mother’s costs.

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Ms Crawford

RESPONDENT: Mr Sisinis

FILE NUMBER: ADC 1255 of 2012

DATE DELIVERED: 16 April 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 10 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pyke QC

SOLICITOR FOR THE APPLICANT: Adelaide Family Law

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the father do pay the mother’s costs in the sum of SEVEN THOUSAND SIX HUNDRED AND THIRTY DOLLARS ($7,630) in the following manner:-

   (a)on or before six months from the date of this order the first payment of THREE THOUSAND EIGHT HUNDRED AND FIFTEEN DOLLARS ($3,815);

   (b)on or before twelve months from the date of this order the further sum of THREE THOUSAND EIGHT HUNDRED AND FIFTEEN DOLLARS ($3,815).

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1255  of 2012

Ms Crawford

Applicant

And

Mr Sisinis

Respondent

REASONS FOR JUDGMENT

INTRODUCTION AND BACKGROUND

1. The substantive proceedings related to a parenting dispute between Mr Sisinis (“the father”) and Ms Crawford (“the mother”) in respect of E born in 2002 (“the child”).

2. It is not controversial that the proceedings were complex and the subject high conflict between the parties.

3. Whilst potentially an unfair summary of the father’s argument, it was his position that the mother had engaged in deliberate conduct designed to alienate the child from her father.  It was his case that the mother either had no intention or lacked the capacity to support his relationship with the child.

4. For her part, she denies any deliberate attempt to alienate the child from the father but rather said that it was his behaviour in the latter years of the relationship characterised by anger and aggression in the presence of the child that has engendered fear and a consequential breakdown in the relationship between them.

5. It is the mother’s contention that she has done the best that she can to facilitate the time between the child, the father and his extended family.

6. The parties were not able to reconcile their differences and ultimately the matter was listed for final hearing on 29 September 2014.

7. The orders sought by the father were as set out in his Further Further Amended Initiating Application filed 26 June 2014.  In that document the father sought that the parties have equal shared parental responsibility for the child and that she lives with each of the parties on a week about basis.

8. It is a fair assessment that the affidavit material relied upon by each of the parties were directed to the orders sought by each of the parties.

9. On the first day of trial the father foreshadowed that he would be seeking orders significantly different to those as set out in his application.  The significant change was that the father now sought primary care of the child with immediate effect from the date of judgment in the event that the Court found favour with his position.

10. The senior counsel for the mother submitted that she was taken by surprise in respect of the late notification of the proposed amendment and that the orders now being pursued by the father were qualitatively different to the case that the mother understood she would be required to meet.

11. For his position, the father’s counsel argued that whilst the orders were significantly different it was essentially the same case.  Put simply, if the Court did not consider that there was merit in a case involving orders for shared care, it was unlikely to find merit in the more dramatic orders now foreshadowed.

12. Senior counsel argued that there did not appear to be any affidavit material of the father which went to the orders that he now sought and that the mother needed the opportunity to consider the father’s case, any further affidavit material that the father may seek to rely upon and in particular to give consideration to whether an objection raised in respect of a subpoena directed to Ms Dolan psychologist would now be challenged rather than the mother’s earlier position of acquiescence.

13. I heard and determined the application for an adjournment and ultimately I was persuaded that the orders then being sought by the father presented a substantially different case with new issues that needed to be considered.

14. The decision to grant the adjournment was also founded on the proposition that irrespective of the orders being sought by each of the parties, I had an obligation to consider the objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and in particular matters that were likely to be relevant to the best interests of the child.

15. The fact that the father’s case as presented was likely to fail simply because there was no evidence upon which the Court could rely in support of the orders that he then proposed did not necessary relieve me of the obligation to consider all of the relevant issues.

16. At the commencement of the proceedings it was not controversial that the child had little or no relationship with the father.  The issue of contention was as to how that state of affairs had come about.  There were parenting issues and matters for consideration by the Court that were not necessarily assisted by the evidence that the parties were able to present.  An inadequately presented case does not necessarily relieve the Court of its clear obligation to make orders that are in all the circumstances in the best interests of the child.

17. On 29 September 2014 I made the following orders:-

    (1)That the proceedings listed for hearing commencing 29 September 2014 are vacated and adjourned for hearing as a reserve listing commencing 27 October 2014 with 5 days allowed.

    (2)That by 4pm on 1 October 2014 the father file and serve a Further Amended Initiating Application, an affidavit of [Ms F] and further affidavit material of the applicant father noting that one affidavit may have already been prepared and circulated.

    (3)The mother and the Independent Children’s Lawyer file any further affidavit material in reply by 4pm on 21 October 2014.

    (4)That the objection to the subpoena directed to [Ms Dolan], psychologist, is listed for argument at 11am on 3 October 2014.

    (5)That further consideration of the matter generally and in particular to procedural and pre-trial matters including objections to affidavit material be adjourned to 11am on 3 October 2014.

    (6)Upon noting the oral application made on behalf of the respondent mother in relation to costs thrown away, the application is to be determined at 11am on 3 October 2014.

    (7)By 4pm on 1 October 2014 the mother’s solicitor do provide to the Independent Children’s Lawyer and the father’s solicitor a schedule setting out the costs sought.

18. It is now a matter of record that the subpoena argument was heard and determined on 27 October 2014 giving leave to the parties to inspect and copy documents produced pursuant to the subpoena including those marked confidential.

19. These reasons relate to the mother’s application for costs thrown away.

20. Following the making of the orders adjourning the proceedings the father filed a Further Further Amended Initiating Application on 1 October 2014 which formalised the orders that he had foreshadowed.

21. In recognition of the paucity of evidence, a further affidavit was filed on behalf of the father on 1 October 2014.

22. I subsequently heard extensive submissions by counsel in respect of objections to affidavit material. Whilst not directly relevant to the determination of the present application, it should be noted that the objection process took nearly two days to determine. The affidavits prepared on behalf of the parties were not drafted with care and were replete with statements that were clearly inadmissible irrespective of the latitude that is extended by the application of s 69ZT of the Act, I indicated at the time that the parties solicitors should give proper consideration as to whether the parties should be wholly liable for the costs incurred and charged in respect of the principal trial affidavits and counsel fees incurred to hear and determine the objections.

THE COSTS APPLICATION

1. The father relied upon the following documents:-

   (1)List of Authorities filed 10 March 2015

   (2)Affidavit of father filed 10 October 2014

   (3)Affidavit of Ms G (father’s solicitor) filed 15 October 2014

   (4)Financial Statement of father filed 10 October 2014

2. For her part, the mother relies upon a List of Authorities and a Schedule of Costs thrown away (as ordered) filed 3 October 2014.

3. Senior counsel for the mother submitted that the Schedule of Costs had been prepared on the relevant scale and that the mother’s application was on the basis of party party costs only.  Moreover there was no application in respect to the costs of the hearing of the application

4. The original Schedule filed 3 October 2014 was also the subject of amendment, a claim for an amount of $1,225 necessary for the drafting and engrossing of a further affidavit in anticipation of the matters that would be raised by the father following his further trial affidavit did not materialise.  Accordingly the costs sought by the mother are as follows:-

26/9/14 Attendance at conference with counsel re Amended Application	$350
Further attendance with client (2 hours)	$700
Preparing brief, collating documents and liaising with client and counsel	$700
Total	$1,750
GST	$175
Total	$1,925
Counsel fees daily rate 29/9/14	$5000
Attendance upon conference in relation to instructions in respect of proposed Amended Application 26/9/14	$650
Preparation of matter with respect to proposed amendments	$975
Time thrown away in respect of anticipated time to be spent re preparing the matter (3 hours)	$1,750
Total	$8,375
GST	$837.50
TOTAL	$9,212.50

1. The mother seeks total costs thrown away of $11,137 on a party party basis.

2. There is no concession by the father that he should be liable for any costs and whilst not clearly enunciated, the father relies on the provisions of s 117(1) namely, that each party to the proceedings should bear his or her own costs.

3. The proceedings resumed for trial before me on 10 March 2015.  The parties however settled the proceedings and final consent orders were made on that date.

4. I do not consider that the terms and conditions of the orders nor indeed the motivation by each of the parties to the making of those orders to be relevant to the mother’s extant application for costs.

5. It could be said however that given the comprehensive nature of the settlement of the proceedings and the notation to those orders which foreshadowed that the parties would act respectfully towards each other, promote the relationship between the child and the parties and importantly their agreement as to shared parental responsibility and time that the child would spend with the father, it is unfortunate that the costs dispute was not able to be agreed.

6. The application was heard on 10 April 2015.  The mother continued to be represented by Ms Pyke QC.  The father was self-represented.

COSTS

1. In considering what order should be made if any in respect of the mother’s costs, s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) requires the Court to have regard to the following:-

   (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.

2. Accordingly I have a wide discretion in respect of matters relating to a potential costs order.

3. It was the principal focus of submissions of senior counsel that the mother’s case centred upon s 117(2A)(c) namely, the conduct of the parties to the proceedings. In summary, the proceedings were adjourned on 29 September 2014 for no reason other than the late notice of significantly different orders then being sought by the father and the need for the mother to consider the change in orders, any affidavit material that the father intended to file in support of those orders and also the need to argue the objection to the subpoena to Ms Dolan psychologist. In any event, it was submitted that the mother’s position was vindicated by the very fact that I found favour in the submissions made and adjourned the proceedings with all that then followed.

4. There was nothing raised by the mother in respect of her financial circumstances but the evidence presented by the parties was such that at best their financial position was modest and other than the question of impecuniosity as it might relate to the father, there was nothing about the mother’s financial position that it should in and of itself be a factor against an order for costs being made in her favour.

5. In respect of the father, he relies upon s 117(2A)(a), (c) and (g).

FINANCIAL POSITION OF FATHER

1. He refers to a financial statement filed 10 October 2014.  Whilst it was filed six months ago there is no point taken either on behalf of the mother that the father’s financial position is different to that which is set out in that document nor was there any request by the father to update the information.

2. The father gives his occupation as a vigneron with a modest income of $270 per week.  It is his summary that he owns property in the sum of $1,030, has superannuation of $67,952 and has total liabilities of $120,120 which principally include credit card liabilities of $19,000, child support arrears of $1,120 and a sum in excess of $100,000 by way of a loan from his mother.

3. The father resides with his mother and brother.  It is conceded that he is integrally involved in the management and day to day operation of a family vineyard enterprise. The document is at one level unhelpful in that it does not explain how the father is able to manage his day to day affairs on $270 a week.

4. Whilst I am not necessarily persuaded that his financial statement provides the assistance that it might in explaining the father’s financial position, nonetheless from what I know of the matter, I am entitled to draw the conclusion that the father’s financial position is modest if not poor.  I am not prepared to accept that it is quite as parlous as the matters set out in his affidavit filed 10 October 2014 would suggest.  It should be noted that the father’s affidavit was prepared in anticipation of an application to be made on behalf of the mother that her costs be heard and determined prior to the commencement of the trial on 27 October 2014.  Accordingly, much of the document is directed towards the inability of the father to pay the mother’s costs at such short notice on the basis that if so ordered, he would have to use funds that his mother had allocated towards the costs of his legal representation to satisfy such an order.  Ultimately the parties settled the proceedings in circumstances which must have enabled them significant saving of what may have been a further three or four days of hearing.

CONDUCT OF THE PROCEEDINGS

1. The father’s solicitor filed her affidavit on 15 October 2014.  To a large degree it sets out the history of the matter but confirms that both she and the father received the mother’s Amended Response and affidavit material on 2 September 2014 with a further affidavit of the mother’s father on 11 September 2014.  Thereafter an understanding that the father needed to respond, Ms G sets out the arrangements as between she and her client.

2. It is clear that the process was difficult for the father.  Ms G says that he found it difficult to read through the mother’s trial affidavits which took several hours over a period of three days and to respond to the allegations raised in documents.

3. For her part Ms G is a sole practitioner, did not employ any support staff to assist her and performed her own secretarial services.

4. For various reasons the father’s trial affidavit was not filed until Monday 29 September 2014 although a draft of the document may have been forwarded on Sunday 28 September 2014.

5. Importantly paragraph 15 states:-

   It was only once the father had come to terms with the contents of the mother’s Amended Response and trial affidavits, that he raised with me, the unworkability of the orders that he was then seeking; and a change in those orders (as has now been sought in the Further Amended Initiating Application (Family Law) filed and served on 1 October) was discussed with counsel and instructions given to counsel, on 23 September 2014.

ANY OTHER RELEVANT MATTERS

1. The father argues that it was reasonable for him to reconsider his position notwithstanding that it occurred close to trial simply because he realised that the orders he was seeking were unworkable.  There is no suggestion however by the father that the mother had done anything which might be considered the catalyst for the father to reassess his position.  It is likely that the father had left matters to the last moment, was unable initially to find funds sufficient to enable counsel to be confidently briefed and then only on the “heel of the hunt” did the father confer with counsel which thereafter occasioned him to rethink his position.

2. I am also not satisfied that even if I were to find that the husband was impecunious (and I am not prepared to make that leap of faith) that in and of itself would not prohibit or prevent an order for costs being made that was otherwise meritorious.  There may be a basis however to impose terms and conditions which might provide some relief to the father in terms of time to pay.

3. Accordingly, I am satisfied that the manner in which the father conducted the proceedings in respect of his late amendment to the orders sought, justify an order for costs in favour of the mother.

CALCULATION OF COSTS

1. Exhibit 1 tendered during the course of the costs application comprises the following documents:-

   (1)Schedule of Costs thrown away including counsel fees.

   (2)Letter from father’s solicitor questioning certain items 2 October 2014.

   (3)Response from mother’s solicitor 16 October 2014.

2. The total sought on behalf of the mother was $11,137 inclusive of GST following the proper concession by senior counsel that the solicitors fee for the drafting and engrossing of a further affidavit at the anticipated cost of $1,225 did not occur.

3. When the father was represented, I asked counsel whether the parties would speak against me assessing the quantum of costs if I found favour with the mother’s application.  Both counsel indicated that there would be no opposition to that course.  Notwithstanding that the father is now self-represented, I do not consider that there is any advantage to the parties, but in particular to him, to refer the matter to a Registrar for an assessment or taxation of costs.  To do so will only incur further and unnecessary additional expense and in any event the exercise is relatively straightforward given the concession by senior counsel that the appropriate basis for an assessment as to quantum should be on a party party consideration.

1. Item 2 on the schedule of solicitors costs refers to “further attendance with client (estimated 2 hours) = $700.

2. Whilst there was no query in respect of this item, equally there is no better explanation.  It is not established that the further attendances occurred and if so, their duration.  In the absence of better particularity, I do not propose to allow that charge.

3. The mother’s response to the fourth item namely, “preparing brief collating documents and liaising with client and counsel (2 hours)” lacks specific detail for a proper assessment to be made.  The response confirms that counsel, solicitor and client have met on one occasion on 26 September 2014.  It is an estimate only that further solicitors fees will be necessitated by the change in the father’s case.

4. If the father had provided a more timely advice of the orders that he was now seeking, it is unlikely that the proceedings would have been adjourned.  It was not the further evidence that was likely to be filed by the father but rather, the manner in which he conducted the proceedings which meant that the trial as listed was vacated and adjourned to 27 October 2014.

5. Taking into account my consideration of the significant expense occasioned to the parties by the process of determining objections to affidavit material, I do not propose to allow the fourth item on the schedule of solicitors costs.

6. Accordingly, the amount of solicitors costs will be fixed in the sum of $350 plus GST.

7. I consider that Items 2 and 3 in respect of counsel’s costs is reasonable.  It is appropriate that an allowance be made for the costs thrown away in respect of the first day of nearing namely 29 September 2014 and also for counsel’s attendance in conference with solicitor and client on 26 September 2014 in the sum of $650.

8. Whilst there is no detail as to Item 3, I am prepared to accept that it was reasonable for counsel to spend time in preparation of the matter with particular reference to the proposed amendments.

9. Consistent with the approach adopted in respect of solicitors costs, I consider that the father should not be responsible for the costs in respect of the preparation for trial thrown away in the sum of $1,750.

10. It should be noted also that senior counsel did not seek costs in respect of the hearing of the mother’s application.

11. Accordingly, I propose to allow Items 1, 2 and 3 in respect of counsel costs but disallow Item 4.

12. Accordingly, the total of counsel fees is in the sum of $6,625 together with GST of $625 being a total of $7,250.

13. I propose to order that the father pay the mother’s costs in the sum of $7,630 inclusive of GST.

TIME TO PAY

1. Whilst it is difficult for the Court to assess with precision the father’s financial position, there is general acceptance that his financial resources are limited.  Senior counsel submitted that an appropriate period of time for payment should be between six and twelve months. The father spoke in terms of years rather than months.

2. I consider that the litigation needs to be brought to an end.  I must temper that consideration with a proper recognition that the father appears to be without assets and whilst not necessarily impecunious, he is nonetheless in a difficult financial position.

3. For his part, he refers to the difficulty of the vineyard industry in which he operates and whilst I do not take judicial notice of matters relating to the general economic climate, I accept the father’s position that a longer period of time to pay is necessary.

4. I propose to order that the father pay the mother’s costs in the total sum of $7,630 within a period of twelve months but divided into two tranches, with the first sum being $3,815 to be paid on or before six months from the date of this order with the balance to be paid within a further six months.

CONCLUSION

1. I make orders as appear at the commencement of these reasons for judgment.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 16 April 2015.

Associate: 

Date:  16 April 2015