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…
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- Crestin & Algar (No 3) [2023] FedCFamC1F 120
- Case
- [2023] FedCFamC1F 120
- Decision Date
CaseChat Overview and Summary
Crestin & Algar (No 3) involved the parents of two children engaged in a protracted dispute over their parenting arrangements. The matter was before the Family Court of Australia. The father sought orders for the mother and her former solicitor to bear his costs in relation to various court events and applications. The father alleged misconduct on the part of the mother and her solicitor, including the improper submission of material to the court-appointed expert. The court was required to determine whether there were circumstances justifying a departure from the usual rule that each party bears their own costs.
The court examined the conduct of the parties and their legal representatives, focusing on allegations of misconduct and the impact of such conduct on the proceedings. The court considered whether the mother and her former solicitor's actions warranted them bearing the father's costs. The court also considered the father's financial capacity to pay the Independent Children's Lawyer's (ICL) costs. The court found that while both parties could be criticised for their conduct, the father's significant debts did not render him impecunious enough to exempt him from paying his share of the ICL's costs.
The court ultimately decided not to make the mother and her former solicitor jointly liable for the father's costs, as it was not satisfied that their conduct warranted such an order. Regarding the ICL's costs, the court ordered the father to pay half of them, considering that while the father had significant debts, he was not impecunious and had some capacity to pay the amount sought. The court found that the prolonged proceedings and additional costs incurred were due to the conduct of both parties, justifying an order for the father to contribute to the ICL's costs.
The court examined the conduct of the parties and their legal representatives, focusing on allegations of misconduct and the impact of such conduct on the proceedings. The court considered whether the mother and her former solicitor's actions warranted them bearing the father's costs. The court also considered the father's financial capacity to pay the Independent Children's Lawyer's (ICL) costs. The court found that while both parties could be criticised for their conduct, the father's significant debts did not render him impecunious enough to exempt him from paying his share of the ICL's costs.
The court ultimately decided not to make the mother and her former solicitor jointly liable for the father's costs, as it was not satisfied that their conduct warranted such an order. Regarding the ICL's costs, the court ordered the father to pay half of them, considering that while the father had significant debts, he was not impecunious and had some capacity to pay the amount sought. The court found that the prolonged proceedings and additional costs incurred were due to the conduct of both parties, justifying an order for the father to contribute to the ICL's costs.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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