Crestin & Algar (No 3)
[2023] FedCFamC1F 120
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Crestin & Algar (No 3) [2023] FedCFamC1F 120
File number: PAC 2862 of 2018 Judgment of: HANNAM J Date of judgment: 7 March 2023 Catchwords: FAMILY LAW – COSTS – ICL costs – Costs against a solicitor – Where the mother was in receipt of legal aid - Where the mother would suffer financial hardship if an order was made that she pay the ICL’s costs – Where the father would not suffer financial hardship if he were to pay a portion of the ICL's costs – Where the father is in a superior financial position to the mother – Where the father makes complaints about the mother's conduct – Where it is not found that the mother's conduct caused the proceedings to be unduly prolonged or unduly expensive – Where both parties are responsible for the adversarial way the proceedings have been conducted – Where the father alleges the mother's solicitor engaged in improper conduct which caused him to incur further costs – Where the Court is not satisfied that the mother's solicitor should be liable for any costs incurred by the father – Where the father's application for costs is dismissed – Where orders are made that the father pay a half-share of the ICL's costs Legislation: Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A), 117(4)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.15, 12.28, Schedule 2, Schedule 3
Cases cited: Cassidy v Murray (1995) FLC 92-633; [1995] FamCA 91
Crestin & Algar (No 2) [2022] FedCFamC1F 656
Huda & Huda [2017] FamCAFC 104
Jensen and Jensen (1982) FLC 91-263; [1982] FamCA 57
Lenova & Lenova (2011) FLC 93-467; [2011] FamCAFC 141
PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Ridehalgh v Horsefield [1994] Ch 205
Division: Division 1 First Instance Number of paragraphs: 88 Date of last submissions: 13 October 2022 Date of hearing: In chambers on receipt of written submissions Place: Parramatta Solicitor for the Applicant: Bilias & Associates Solicitor for the Respondent: Pryor Tzannes & Wallis Solicitor for the Independent Children's Lawyer: Adams & Partners Lawyers ORDERS
PAC 2862 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CRESTIN
Applicant
AND: MR ALGAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HANNAM J
DATE OF ORDER:
7 March 2023
THE COURT ORDERS THAT:
1.The father’s application for costs against the mother and Ms G t/a J Lawyers is dismissed.
2.The father is to pay a half-share of the costs as sought by the Independent Children’s Lawyer in the sum of $10,953.25 within three months of the date of these orders.
3.The application for costs made by the Independent Children’s Lawyer is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crestin & Algar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
At the completion of parenting proceedings, the first respondent father (“the father”) made application for the mother to pay his costs of those proceedings and that the mother’s former solicitor (“Ms G”) share in the payment of certain particularised costs. The Independent Children’s Lawyer (“ICL”) also seeks an order that the parties pay an equal share of the ICL’s costs.
The mother and Ms G both seek dismissal of the father’s application for costs. The mother opposes the application that she pay any portion of the ICL’s costs, while the father seeks an order that the mother pay the entirety of the ICL’s costs.
Each of the applications entail a departure from the usual rule that each party shall bear his or her own costs, and thus the question for me to determine is whether there are circumstances justifying departure from this rule.
BACKGROUND
The parenting proceedings concerned two of the mother’s five children. The “older child” who was the subject of the parenting proceedings is a boy now aged 9. He is the child of the mother and the second respondent who were in a relationship prior to the mother commencing a relationship with the father in 2015. The second respondent took no part in the proceedings. The father and mother’s only child, also a boy (now aged 7) was the younger child (“the younger child”) in the parenting proceedings.
The mother and the father (“the parties”) separated in May 2018 but remained living together for a short time until the mother moved from the former family home the following month, taking her children with her. The mother commenced these proceedings in late-June 2018 after the father refused to return the younger child then aged two and the older child (“the children”) to the mother. The father returned the older child to the mother prior to the first court event and subsequently the parties reached agreement after an ICL was appointed that the younger child live with the father and spend defined time with the mother. Interim orders were made with the consent of the parties to give effect to this agreement.
Subsequently the parties reached agreement for the older child to continue living with the mother and to spend defined time with the father and for the younger child to live with the mother for three nights each week and with the father for four nights each week. Although there were some changes to the interim orders governing the children’s parenting arrangements pending final hearing, this arrangement remained essentially the same for the ensuing years until September 2022 when final orders were made and I delivered my Reasons for Judgment (“the September 2022 judgment”).[1] The following paragraphs are extracted from that judgment to set out the background after the interim arrangement for the children came into effect:
[1] Crestin & Algar (No 2) [2022] FedCFamC1F 656.
25In December 2018 a single expert was appointed to assess the family for the purposes of assisting the Court in resolution of the dispute.
26From at least the commencement of 2019, any cooperative communication between the parties had broken down and through their legal representatives both parties were engaged in disputes with one another concerning a range of matters both related and unrelated to the children.
27The expert appointed in the proceedings (“the expert”) interviewed the family (including the second respondent) over three days in April 2019.[2] His report dated 8 May 2019 (“the expert’s report”) was released to the parties a short time later.
28The expert’s evidence is a matter that will be dealt with at length later in these Reasons. It suffices to say at this stage that the expert’s recommendations included that the mother have sole parental responsibility for the older child and that this child live with her, and that the father have sole parental responsibility for the younger child and that this child live with him and spend alternate weekends and half school holidays with the mother. The expert also recommended that the older child maintain regular contact with the father.
29Following the release of the expert’s report, the parties continued to make ongoing allegations against one another generally through correspondence between their legal representatives about various matters related and unrelated to the care of the children. In these proceedings they each make allegations about the other parties’ conduct over a lengthy period following separation.
…
31At a point in time which is in dispute between the parties, the father formed a relationship with a new partner (“the father’s partner”) who has two children in her full-time care and who is engaged in a family law dispute with her former partner, the father of her children (“Mr H”).
32The mother claims that when the younger child returned to her care on 19 February 2020[3] he reported that there had been a violent home invasion at the father’s home relating to the father, his partner and the partner’s children. The mother also claims that this child reported that he is going on an aeroplane “forever”. The mother did not consider that the explanation she sought from the father in relation to this incident was satisfactory and in response retained the younger child in her care and withheld him from the father for a period of five weeks contrary to the interim orders in force at the time.
33The day after she first retained the younger child in her care, the mother filed an application seeking to suspend orders with respect to this child’s time with the father until the incident said to have been disclosed by this child was investigated.
34The mother’s application for suspension of the interim orders was heard by a Senior Registrar on 26 March 2020 and dismissed. The younger child then recommenced spending time with the father. Other orders were also made on this date (“the March 2020 interim orders”) including for the older child to spend time with the father for five hours once a month for a period of four months, which was to then increase to a period of eight hours every fourth Saturday.
[2] It is the father’s case in this costs application that the mother and her former solicitor Ms G inappropriately arranged for some material to be provided to the expert including a recent affidavit of the mother which was not filed following the usual procedure and of which the father was unaware. The father contends that these circumstances required him to make an urgent ex parte application precluding the single expert from reading the mother’s affidavit which was granted. The father seeks an order that the mother and Ms G are jointly liable for the costs of this application (“the 12 April 2019 application”).
[3] At around this time there were numerous court events in respect of which the father seeks that his costs be shared between the mother and Ms G. The first of these was a judicial duty list hearing on 13 February 2020 (“the 13 February 2020 court event”) which the father contends was prolonged and caused him to unreasonably incur additional legal costs due to the non-attendance of the mother and Ms G which was the subject of criticism by the registrar and noted in her orders. The registrar adjourned the proceedings before myself to 18 February 2020 and directed that all parties and their legal representatives appear in-person. The next court event for which the father seeks that his costs be paid equally between the mother and Ms G was the case management hearing before me on 18 February 2020 (“the 18 February 2020 court event”) at which the mother and Ms G did not attend. It is the father’s case that as no explanation has ever been provided by the mother and Ms G for their non-attendance, which caused the father to incur additional costs, this court event forms part of his costs application.
As just recorded, the March 2020 interim orders also determined an application brought by the father (in October 2019) for the older child to spend time with him. The father’s application for an order that the mother and Ms G equally pay his costs in respect of this court event (“the 26 March 2020 hearing”) is based upon his contention that the mother’s application for a suspension of the younger child’s time was without merit and any evidentiary support, and was unreasonably pursued by the mother and resulted in the father unnecessarily incurring legal costs, a matter effectively noted by the senior registrar who heard the application at that time.
From September 2020, the older child ceased spending time with the father, though the parties are in dispute why this occurred. In summary, the mother contended that the older child refused to spend time with the father due to the father’s poor treatment of him, a matter which is disputed by the father.
From around November 2020, the parties were engaged in a significant dispute about the younger child’s readiness for school at the commencement of 2021.
Each party also sought that this child be enrolled in different schools, in each case close to their respective homes. The father commenced proceedings in late-2020 in relation to this matter also and in February 2021 orders were made in chambers with the consent of the parties restraining them both from enrolling the child or commencing his primary education until further order.
The following extracts from the September 2022 judgment summarise the next events:
43It is also apparent from the parties’ respective affidavits that each of them took various steps to carry out investigations into the circumstances of each other’s household and made ongoing allegations about the conduct of the other. Investigations undertaken by the mother into the circumstances in the father’s household included through engagement of a private investigator and making contact with the father’s partner’s former partner, Mr H.
44In June 2021 the mother filed an application seeking access to the court file in family law proceedings between the father’s partner and Mr H.
45On 12 July 2021 the father filed a contravention application in relation to the mother not making the older child available to spend time with him on 11 occasions and a contempt application alleging that the mother gave a copy of one of his affidavits filed in the proceedings to Mr H.
46On 5 August 2021 in a court event known as “the winter callover” these proceedings came before a judge other than the allocated trial judge. At that court event orders were made confirming appointments with the single expert with a view to obtaining an updated expert report (although no order had been made for an update report) and for the parties to attend mediation.
47On 11 and 12 August 2021 family members were assessed by the expert for a second time via a video platform.
48On 20 August 2021 the expert’s supplementary report was released. In brief summary, the expert maintained his earlier opinions and recommendations and further recommended that the younger child commence at a school near the father, as the father sought at the time.
…
50On 29 September 2021 the father filed an application seeking orders in relation to the younger child’s enrolment at school. In the following month, the mother’s application to seek access to the court file in relation to the family law proceedings between [the father’s] partner and Mr H was dismissed. The father subsequently withdrew both his contempt and contravention applications and on 26 November 2021 directions were made to ready the matter for final hearing.
…
55At the final hearing which commenced on 17 January 2022 it was identified that the issue of where the younger child was to be enrolled for school required immediate judicial determination given the school year (which was this child’s first term of kindergarten) was to commence within two weeks of the hearing.
56In these circumstances, I ordered on 19 January 2022 that pending final judgment the father be at liberty to enrol the younger child in a school close to his residence as he proposed. I also made an order that the child’s interim living arrangements be slightly varied to reflect that the child’s time with the father during the school term commence at the completion of school on Wednesday each week.
…
59In the adjourned period both parents filed further evidence regarding events following the making of interim orders. In summary, the mother alleged that in the intervening period the father was obstructive of the younger child’s relationship with her, which the father denied.
When the final hearing resumed in March 2022, each party continued to pursue final orders in accordance with proposals that had been on foot for some time. The mother proposed that the parties equally share parental responsibility for the younger child except in relation to his schooling and that this child live with her and spend substantial and significant time with the father. The father sought orders that would see him have sole parental responsibility for the younger child, that this child live with him and spend time with the mother each alternate weekend and half of the school holidays. Both parties proposed orders that the mother hold sole parental responsibility for the older child and that he live with the mother. The mother proposed that the older child spend no time with the father while the father proposed that this child spend one weekend every four weeks with him and additional time during school holidays.
The ICL’s proposal at the end of the hearing was similar though not identical to the father’s proposal in relation to the younger child and the ICL also proposed orders for the older child to spend time with the father. The ICL supported the mother’s proposal that she and the father equally share parental responsibility for the younger child.
The final parenting orders were broadly as proposed by the father though some specific orders proposed by the ICL (which were more consistent with the expert’s recommendations) in relation to matters such as changeover and the engagement of the children in family therapy were also made.
THE COSTS APPLICATION
Upon delivery of final orders the father was given leave to make an oral application that his costs in the parenting proceedings be paid by the mother. The ICL also made oral application that the parties equally share the ICL’s costs.
The parties agreed that the applications for costs could be determined in chambers on written submissions and any further affidavit deposing to matters relevant to costs. A timetable for the filing of any such affidavit and written submissions was made and extensions granted at the request of the parties on two further occasions. During this period, the mother, the father, and Ms G filed affidavits with respect to costs and the father filed a Minute of Order setting out the exact terms of the orders sought by him. Neither party, the ICL nor Ms G filed submissions in relation to the costs application, though a further extension for this purpose was sought after the expiry of the second extension to the filing of such documents. In these circumstances and as the affidavits effectively amounted to submissions, the further extension was refused and the applications are determined having regard to the affidavits filed.
In his Minute of Order filed on 16 September 2022 the father sets out the details of his application that the mother pay his costs in the parenting proceedings. He seeks that the mother pay his costs and disbursements of and incidental to the proceedings on a party/party basis except for the following costs and disbursements for which he seeks that the mother and Ms G be jointly and severely liable:
(a)The 12 April 2019 application;
(b)The 13 February 2020 court event;
(c)The 18 February 2020 court event;
(d)The father’s application and the mother’s application determined at the 26 March 2020 hearing;
Aside from solicitor’s fees (which he seeks be assessed by a registrar), the father quantifies other costs incurred[4] as follows:
(a)Expenses for preparation of reports by experts: $29,740 (or $16,165 in the alternative if an order is made to share the preparation costs of both reports produced by the expert);
(b)Expenses for attendance by expert witnesses: $7,535;
(c)Expenses for attendance by lay witnesses: $75; and
(d)Counsel’s fees, including senior counsel: $55,556.13.[5]
[4] Pursuant to Schedules 2 and 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
[5] An order was also sought pursuant to r 12.28 of the Rules that it was reasonable for the father to engage senior counsel.
The total sum of the costs sought is thus $92,906.13 (or $79,331.13 in the alternative).
The mother resists the father’s costs application on the basis that she has been in receipt of legal aid grants or represented pro bono, that she does not have the capacity to pay such an order and contends that the father has capacity to pay for his own costs and that he unnecessarily “escalated” the proceedings.
At the final hearing, the ICL sought orders that would see the parties each pay $10,953.25 representing a half-share of the ICL’s costs, but did not file further evidence or written submissions to advance this application. The father seeks dismissal of the application that he pay a half-share of the costs of the ICL and seeks an order that any order for the ICL’s costs be met solely by the mother.
THE LAW AND DISCUSSION
Applications for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to sub-s (2) which gives a Court a discretion to make an order for costs if there are circumstances that in the opinion of the Court justify such an order. Any such order for costs is pursuant to s 117(2) to be “as the Court considers just”.
The High Court in Penfold v Penfold[6] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
[6] (1980) 144 CLR 311.
ICL’s costs
The Act also makes specific provision in s 117 for orders as to the costs of an ICL:
Costs of independent children’s lawyer
(3)To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4)However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
…
Funding of independent children’s lawyer not to affect costs order
(5)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney General.
The mother was at times in receipt of assistance from legal aid and other times receiving legal services pro bono. The mother was represented by senior counsel pro bono at the final hearing. Although the mother did not provide the terms of her grant of legal aid, the father annexed to his affidavit a letter from the Grants Division of Legal Aid NSW which provides that the mother’s grant commenced on 21 June 2018 and that there was a request for further funding made on 5 February 2020.
The mother has been represented by three solicitors. The first solicitor represented the mother under the grant of legal aid, the second solicitor (Ms G) under the grant for legal aid and pro bono, and the third solicitor pro bono. It is unclear when the mother’s grant for legal aid ceased, although Ms G withdrew in September 2021 after the father brought a contempt application against the mother which would have required Ms G to be a witness to the case.
The mother states she has no costs agreement with the solicitors that represent her pro bono.
It is noteworthy that the mother “has received legal aid” in respect of these proceedings and therefore pursuant to s 117(4)(a) “the court must not make an order for costs” against the mother “in relation to the costs of the independent children’s lawyer”.
I am also satisfied that after the mother’s grant of legal aid apparently ceased (at a time which is unclear) her financial circumstances remained significantly strained. The solicitor who had carriage of the proceedings at final hearing and the mother’s counsel both acted for her pro bono and according to the mother’s affidavit she has extremely limited resources and income, a matter that is conceded by the father in the Outline of Case filed on his behalf at the commencement of the hearing.
The mother has not engaged in paid employment since mid-2022 and when she last worked it was on a casual basis for four to six hours per week at an hourly rate of $28. She has no assets other than a superannuation interest of $800 and many of her day-to-day expenses are paid by her partner. The mother does not receive any other income such as a Centrelink payment and owes a Centrelink debt of $22,000.
The only other financial resource available to the mother is payment under the NDIS scheme for her older child who has a significant disability. The mother deposes to the various therapies which are required to be funded through this payment and that she is expected to pay any shortfall if the NDIS grant is insufficient.
In his affidavit and in the parenting proceedings the father did not adduce any evidence to contradict the mother’s evidence concerning her financial circumstances except to suggest that she may have had some other source of income or a third-party assisting her in the payment of her costs. He also appears to assume that as cost notices issued to the mother were expressed to be “contingent” upon a successful outcome or costs order in the proceedings and given that she was unsuccessful and has not applied for costs, any such contingencies have not been met and the mother would not incur any solicitor’s or counsel’s fees. Although these matters may have some relevance to the parties’ respective financial circumstances they do not challenge the mother’s evidence in relation to her extremely limited income and assets.
Having regard to all of the foregoing evidence I am satisfied that the mother received a grant of legal aid in the proceedings up until sometime before the final hearing and would suffer financial hardship if she now had to bear a proportion of costs of the ICL. The Court thus is precluded from making an order pursuant to s 117(4) of the Act.
The father has not received legal aid in respect of the proceedings. I am not satisfied that he would suffer financial hardship if he were required to bear half of the costs of the ICL as is sought against him for the reasons which will become apparent when considering other matters pursuant to s 117(2A) later in this judgment. In this regard, I note that there is considerable overlap between some of those s 117(2A) matters (in particular the financial position of each of the parties to the proceedings) and the question of financial hardship.
The father’s costs application
Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs. There is nothing to prevent any one factor being the sole determinant for an order for costs.[7] The matters relevant in this case are as follows.
[7] PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123.
The financial position of each of the parties to the proceedings
The father deposes to a precarious financial position. He says that he has debts of approximately $270,000, comprised of outstanding fees owing to his solicitor and money borrowed from his partner and family members but provides no evidence about the terms of those loans. He deposes to being self-employed and that he works part-time. He estimates that his income before tax “would not be more” than $75,000 per annum. He does not own any real estate or a motor vehicle and has no savings. He has shares valued at $500 and a superannuation interest of just under $86,000.
The mother contends that the father’s financial circumstances are not as precarious as he maintains. She asserts that he pays $1,650 per week in rent, has recently purchased a new motor vehicle for $70,000 and has recently taken an overseas holiday with his partner. The mother adduces no evidence for these assertions other than a screenshot relating to an unrelated rental property.
Although the father deposes to having significant debts, I am satisfied that he is in a superior financial position to the mother, having regard to the disparity in their relative incomes and noting that the mother was in receipt of a grant of legal aid for a number of years in relation to these proceedings and thereafter was represented pro bono by both solicitor and counsel. The father had sufficient capacity to pay for senior counsel to represent him in the proceedings albeit he deposes to receiving significant funding for legal proceedings through loans from family and friends.
I am not satisfied in these circumstances that the father would suffer financial hardship if he were required to pay a proportion of the costs of the ICL. I attach weight to my finding that the father is in a superior financial position to the mother in considering the costs order that he seeks against her.
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 circumstances relating to the mother’s receipt of assistance by way of legal aid has previously been set out when considering the ICL’s application that she bear a share of the ICL’s costs.
The conduct of the parties to the proceedings in relation to the proceedings
In Jensen and Jensen,[8] Nygh J referred to this as relating to “the manner in which each of the parties conducted the proceedings” and whether “non-cooperation, obstructiveness or otherwise” by one party causes the conduct of the proceedings to be “unduly prolonged or made unduly expensive to the other side”.[9] The father contends that the mother engaged in conduct of various types that created further costs for him. The mother does not address the father’s complaints about her conduct of the proceedings in her affidavit but complains that the father took an excessively litigious and adversarial approach to the proceedings himself.
[8] (1982) FLC 91-263 (“Jensen”).
[9] Jensen at 77,472.
The father’s complaints about the mother’s conduct of the proceedings can be summarised as follows:
(a)That the mother “taunted” him and the fact that he was incurring legal expenses when she was receiving legal aid;
(b)That he relied upon text messages in the proceedings which the mother foreshadowed she intended to challenge on the basis that they were not authentic and had been manufactured. The father contends that this anticipated challenge resulted in him having to engage the services of an expert to prove the authenticity of the messages in question. Although the mother originally required this expert for cross-examination she changed her position at final hearing and this expert was not ultimately required for cross-examination; and
(c)As it was the mother only who required an updated report from the court appointed expert psychiatrist and this witness’s attendance for cross-examination, both the costs of preparation of the updated report and the expert’s attendance fees should be borne by the mother alone.
In my view, none of the forgoing matters that the father raises in this regard unduly prolonged or made the conduct of the proceedings unduly expensive to him. The father does not explain how the mother’s “taunts” towards him had the foregoing effect nor do these “taunts” of themselves (although being immature and unhelpful in the circumstances) amount to non-cooperation or obstructiveness or other conduct of the type contemplated by the authorities when interpreting this matter.
I am likewise of a similar view in relation to the second of these matters complained of by the father in this regard, the mother’s actions that allegedly required him to prove the authenticity of his own evidence. It is difficult to understand why the father felt it necessary to prove the authenticity of messages which on their face were not questionable and why he responded in the way that he did to the suggestion by the mother allegedly calling into question their authenticity.
The father’s complaint about the mother’s conduct concerning the updated report and costs of the attendance by the expert has no foundation for the following reasons.
The mother originally opposed the appointment of the expert and instead sought that the parties attend upon a family report writer. The father filed an Application in a Case on 6 December 2018 seeking the appointment of the expert, a psychiatrist. At this time, Ms G still represented the mother and wrote an email to the father’s legal representative on 7 December 2018 expressing her view that the expertise of the expert was not required in circumstances where the parties had not yet attended upon a family report writer. Although the ICL supported the appointment of the expert, the ICL was aware of the issues raised by Ms G and also identified that the legal aid grant would only cover a small amount of the expert’s total fees. Ultimately the expert was appointed on 12 December 2018 in orders made with the parties’ consent which provide that the father would cover the costs of the expert’s report.
As previously noted, the expert’s report dated 8 May 2019 was released to the parties a short time later.
The parties both bear responsibility for the events in the proceedings that followed the release of the expert’s report. Each of them continued to make ongoing allegations against one another about various matters related and unrelated to the care of the children and each made application for further orders in a manner that seemed at times in retaliation or in response to the other party’s application. As a result there was very little progress in finalising the proceedings for the ensuing two years.
As also previously noted, these proceedings then formed part of a court event known as “the winter call-over” in August 2021 in which orders were made by a Judge in another registry. At that court event, orders were made apparently “confirming” appointments with the expert with a view to obtaining an updated expert report although no order for such a report had been made. It is difficult to understand why an order was made confirming an appointment for an updated report from the expert in circumstances in which the funding of the expert’s first report was the subject of such dispute between the parties and no order had been made for the preparation of an update report. In any event the issue of funding for the updated report was not addressed in the orders made at the winter call-over.
In the foregoing circumstances, I am of the view that the father has not made out his complaint that the mother’s conduct in relation to the expert’s updated report unduly prolonged or unduly added to his expenses.
So far as the expert’s fees for attendance at the final hearing are concerned, I note that it was established at the 18 February 2020 court event shortly prior to the commencement of the final hearing that the father and ICL did not require the expert for cross-examination at the final hearing. It was also foreshadowed in these circumstances that the question of the payment of the expert’s fees was a matter in dispute. In a notation to orders on that day it was recorded that in the event the mother requires the attendance of the expert and issues related to the payment of his attendance are resolved that the ICL was to notify the expert of his requirement to attend within 14 days of the allocated trial dates. The orders made at the time indicate that the father agreed to meet half of the costs of the expert to attend for cross-examination.
At the final hearing counsel for both parties and the ICL did cross-examine the expert and rely upon his additional oral evidence in their final submissions. The record indicates that the least amount of time in cross-examination of the expert was consumed by counsel representing the mother, with cross-examination by the father’s counsel extending for a period of time more than double that of the mother’s counsel.
The father now refers to Rule 7.09(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) in asserting that the mother “should have been solely responsible for the costs of the single expert’s attendance for cross-examination”.
It is of course always open to the Court to dispense with a particular rule in appropriate circumstances. In my view, these are such circumstances. The mother has always maintained that an expert was not required and that she could not afford to pay personally any share of the expert’s fees including for his attendance for cross-examination. The father agreed to pay a half share of the attendance costs of the expert. He has not made out the complaint that the mother acted in a manner which unduly prolonged or added to his expense in requiring the expert noting that the expert was more extensively cross-examined by his own counsel at final hearing and that the father relied heavily upon the expert’s evidence adduced in that cross-examination.
In considering the weight that should be attached to the conduct of the parties to the proceedings in this costs application, I note that the mother also makes similar complaints about the father.
In my view, both parties have been equally responsible for the particularly adversarial way in which these proceedings have been conducted and the father’s conduct in this regard must also be taken into account when considering this matter in this costs application.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
The portions of the father’s affidavit that are directed to this matter deal in the main with Ms G’s non-compliance with directions to attend at court events, a matter I will consider in the context of his application for orders against Ms G. He does not otherwise complain about any non-compliance with orders of the court by the mother.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
Neither party was wholly unsuccessful or successful in these proceedings.
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
In his affidavit, the father annexes three offers he made in the proceedings, one before the expert report (11 September 2018) and two after the update expert report (22 May 2019 and 13 May 2020).
The offer made 11 September 2018 only refers to the younger child, despite the second respondent being listed on the ‘Offer of Settlement’ document annexed to the father’s affidavit. This offer also proposes equal shared parental responsibility for the younger child and a week-about live-with arrangement between the parties.
The offers of 22 May 2019 and 13 May 2020 are similar and can be summarised as follows:
(a)For the older child: the mother have sole parental responsibility, live with the mother and spend time with the father every four weeks (from Friday to Monday in the 22 May 2019 offer and Saturday only in the 13 May 2020 offer).[10]
(b)For the younger child: the father have sole parental responsibility, live with the father and spend time with the mother from after school Friday to commencement of school Monday on alternate weekends, half of school holidays and special occasions. The offer also provides that prior to commencing kindergarten the younger child spend time with the mother from Friday 5.00pm to Sunday 5.00pm each alternate weekend.
[10] The 22 May 2019 offer also proposes the older child spend time with the father in school holidays on the weekend when the younger child is not with the mother.
The father advances no argument as to how the offers of settlement support his application for costs. It is to be noted that no weight could be placed on the 2018 offer of settlement as the parenting arrangement then proposed which would see the younger child live in an equal shared care arrangement would not be practically feasible to implement and thus cannot be seen as a realistic offer of settlement.
In my view the mother cannot be criticised for not accepting the 2019 offers of settlement when they included an order for sole parental responsibility. Parental responsibility was a very real live issue in the proceedings and equal shared parental responsibility was promoted by the ICL at final hearing.
The father’s application in respect of Ms G
It is well-settled that a Court may make an order for costs against non-parties, including legal practitioners.[11] In Cassidy v Murray[12] the Full Court considered a line of authority dealing with the circumstances where legal practitioners may be liable for an order for costs and said the following:
[11] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.15. See also Family Law Act 1975 (Cth) s 117(2) which does not confine the order to a party to the proceeding.
[12] Cassidy v Murray (1995) FLC 92-633 at 82,364–82,365 (“Cassidy”) citing Ridehalgh v Horsefield [1994] Ch 205. In the recent decision of Huda & Huda [2017] FamCAFC 104 the Full Court referred with approval to the decision of the Full Court in Cassidy.
Whereas some of the cases say that there must be “a serious dereliction of duty” by the solicitor before a costs order can be made against that solicitor, in our view the matters identified by the Master of the Rolls in Ridehalgh v. Horsefield accurately reflect the law, which, in its application to this jurisdiction, can be set out as follows:
1.Pursuant to s 117(2) Family Law Act, the Court has jurisdiction to make an order for costs against a solicitor or a non-party.
2.The court should not make such an order without giving the person to be affected by the order an opportunity to be heard.
3.The Court may make an order for costs against a solicitor without the necessity to establish that the solicitor has been guilty of serious professional misconduct.
4.The solicitor has a duty to the Court to promote the interests of justice whilst at the same time attending to the needs of the solicitor’s client.
5.A mistake or error of judgment would not justify an order for costs against a solicitor. However, misconduct, default or negligence, any of which are found by a Court to be of a serious nature, may be sufficient to justify an order.
6. The jurisdiction is compensatory.
Whilst the English cases talk of the conduct needing to be "serious or gross", it adds nothing to set the threshold at "serious or gross", rather than at "serious", "gross" being a more extreme term than "serious". We think that this represents an appropriate balance between the competing public interests involved, namely, the concern that lawyers should not be deterred from pursuing their clients' interests for fear of being made personally subject to orders for costs, and the principle that innocent parties should not be occasioned costs, for which they would not otherwise be liable, as a result of the inappropriate conduct of solicitors.
The father’s application for costs against Ms G is based entirely upon alleged improper conduct on her behalf.
Neither the father’s application for costs nor Ms G’s affidavit filed in this application (which is effectively a combination of her evidence and submissions) consider other matters in s 117(2A) such as the financial position of Ms G, though the father also contends that in part Ms G’s alleged improper conduct includes non-compliance with previous orders of the Court.
It is the father’s case that Ms G engaged in improper conduct in the performance of her responsibilities in acting for the mother in the parenting proceedings which inappropriately caused him to incur further costs as follows:
(a)Ms G’s conduct in forwarding an affidavit of the mother and annexed bundle of documents to the expert without having provided them to the father’s lawyers. This the father contends required him to bring an ex parte application which was made and determined on 12 April 2019 that the expert not read the affidavit prior to a date set for assessment and interviews with the mother;
(b)An imprecise allegation about the conduct of Ms G with respect to the father’s application for parenting orders in relation to the older child filed on 9 October 2019 and determined on 26 March 2020;
(c)Ms G’s alleged improper conduct in failing to take steps to verify the mother’s unfounded allegations about risks present in the father’s household that formed the basis of the mother’s application to suspend the younger child’s time with the father and vary the interim arrangements for this child which was also heard and determined at the 26 March 2020 hearing;
(d)The failure of Ms G to attend at the court event on 13 February 2020 in circumstances in which the mother was not excused from attendance; and
(e)The failure of Ms G and the mother to attend at the court event on 18 February 2020 despite an explicit direction that both attend.
When considering each of the father’s contentions about Ms G’s alleged improper conduct it must be observed that Ms G was no longer representing the mother at the time of the final hearing and at the time the father made his oral costs application. When making his oral costs application the father did not foreshadow that such application would include seeking costs against Ms G and as such, no orders were made for her to be served with his affidavit and to allow her an opportunity to respond to such application.
Ms G apparently became aware of the father’s application for an order that she pay a portion of his costs and filed an affidavit in response to the extent that she was able to do so. In that affidavit, Ms G deposes that although the father’s solicitor notified her of the orders sought by emailing the father’s Minute of Order to her on 16 September 2022 she had not been provided with a copy of the father’s affidavit in support of his application.
The father’s 12 April 2019 ex-parte application
According to Ms G’s affidavit, on 8 April 2019 she filed a hard copy of the list of documents to be forwarded to the expert “in the form of an affidavit” and sent a copy to the father’s solicitor and the ICL by registered post. She further deposes that (consistent with one of the many notations made by the Court on 12 April 2019) the ICL received this copy of the affidavit containing the list and sent it to the expert. Ms G deposes that on the morning of 12 April 2019 prior to approaching the Court, the father’s solicitor sent correspondence to the office of the expert asking that the expert not read the mother’s affidavit. She deposes that this letter is replete with irrelevant allegations about the mother. Ms G also deposes that the ICL wrote to the father’s solicitor in response to this letter informing him that the expert had been provided with a copy of all the documents filed in the proceedings (including the mother’s most recent affidavit) and that any communication with the expert for the purposes of preparing the report should be by way of joint correspondence approved by all of the parties. The ICL advised that he requested the expert not to consider the email from the father’s solicitor sent that day and any documents sent without the consent of the other parties.
Ms G deposes that the father’s solicitor did not communicate with her to advise that he had not received the mother’s affidavit prior to filing the urgent application and contacting the Court to arrange an “urgent listing” with the Judge’s associate. Had the father’s solicitor let Ms G know that he did not have the affidavit, Ms G deposes that she would have immediately provided it to him electronically. Ms G deposes that the father’s application was made without any prior attempt to resolve the issue with her and that she was unaware of attempts to contact her by the Court at 3.55pm as she was in another court at the time.
I accept the submission of Ms G that her non-attendance at an urgent application brought by the father’s solicitors without any prior notice and heard on the same day does not amount to any improper conduct on her part. Moreover, the father’s solicitor took no steps to resolve the matter such as contacting Ms G and requesting a copy of the affidavit in question.
Ms G’s non-attendance at court events – 13 and 18 February 2020
So far as the court event on 13 February 2020 is concerned, Ms G deposes to being required to attend a “serious medical emergency concerning [her] relative’s young child” and that she had notified the Court of her unavailability to attend that court event. A notation of the orders dated 13 February 2020 is consistent with Ms G’s evidence concerning this matter.
So far as the court event on 18 February 2020 is concerned, Ms G deposes to telling the mother to attend court on that day and to “seek leave to speak to the duty solicitor if there was anything she didn’t understand”.
I am of the view that Ms G has provided a satisfactory explanation for her absence from court on 13 February 2020 and that her conduct does not meet the high bar of “improper conduct” on her part, nor does her absence on 18 February 2020.
While I consider that it would have been appropriate for Ms G on both occasions to have informed the father’s solicitor and/or the ICL that she would not be attending Court on these occasions, I note that Ms G deposes to particularly poor communication between herself and the father’s solicitor. For example, Ms G annexes a letter dated 19 April 2021 sent from herself to the father’s solicitor in which she complains about his conduct in the following terms:
I refer to your phone call to me on 3 February 2021 in reference to the above matter. Your personal derogatory comments and attack on my client and your swearing at me, ‘you are just a fucking …’ fell abysmally below the level expected of an officer of the court.
(As per the original)
The mother also deposes in her affidavit that she “personally witnessed [the father’s solicitor] speak rudely towards [Ms G]”.
While I am not required to determine whether the father’s solicitor did engage in communication with Ms G in accordance with her affidavit, it would appear that communication between Ms G and the father’s solicitor was poor and may have had some impact on their respective ability to perform their duties. In short however the contentions of the father in relation to these matters falls well short of establishing that Ms G behaved in an improper manner.
In any event, even if the conduct of Ms G not attending the court event on 18 February 2020 was deemed to be “improper”, a costs order cannot follow given that “[the] conduct caused no loss to another”[13] as trial directions were made and the matter progressed.
[13] Cassidy at 82,366.
26 March 2020 hearing
I am also not satisfied that any of Ms G’s conduct in relation to the interim hearing on 26 March 2020 could be seen to amount to improper conduct as understood by the authorities. It is essentially the father’s complaint that Ms G should be held jointly responsible with the mother for bringing an application to suspend the younger child’s time with him which was devoid of merit, as there was no evidence to support the mother’s allegations that grounded this application. He contends that Ms G’s failure to investigate the mother’s claims amounts to improper conduct.
While it may have been premature for Ms G to have filed an application on the mother’s behalf in the absence of any real evidence to substantiate the mother’s allegations, Ms G deposes to attempting to obtain information from the father’s solicitor about information given to the mother by the younger child but this information was not forthcoming.
In any event the conduct of Ms G said to be improper neither unduly prolonged or caused the father undue expense as the mother’s application was dealt with by the senior registrar at the same court event on 26 March 2020 that had already been scheduled for the hearing of the father’s application for interim orders with respect to the older child’s time with him. In summary, there is no basis upon which I could find that Ms G engaged in any improper conduct or that her conduct caused any “loss”[14] to the father arising from the court event.
[14] Cassidy at 82,366.
For the foregoing reasons I am not satisfied that the conduct of Ms G should result in her being liable for any costs incurred by the father as he seeks.
CONCLUSION
Taking into account each of the foregoing matters and attaching weight to them for the reasons given, I am not satisfied that I should depart from the usual rule that the parties are liable for their own costs.
So far as the ICL’s costs are concerned, for the reasons given I am precluded from making the order sought against the mother. In relation to the order sought by the ICL against the father, I am satisfied that although he has significant debts he is not impecunious and does have some capacity to pay the modest sum sought. It is also a well-settled principle that impecuniosity in itself is not a sufficient reason to prevent a court from making an order for costs against a party.[15]
[15] Lenova & Lenova (2011) FLC 93-467 (“Lenova”).
Although the ICL did not make any submissions in support of his application, as previously discussed, both parties may be validly criticised by the Court for the manner in which they conducted the proceedings which led to the proceedings being prolonged and further costs being incurred by the ICL. While orders were made largely in accordance with the father’s proposal he was not wholly successful and some of the orders proposed by the ICL were made as I considered them proper and in the best interests of the children.
These circumstances in my view justify the making of an order as sought by the ICL that the father pay his half-share of the ICL’s costs.
For the foregoing reasons orders are made as set out in the forefront of these Reasons for Judgment.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 7 March 2023
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