Cullen & Cullen (No 2)

[2016] FamCA 978

FAMILY COURT OF AUSTRALIA

CULLEN & CULLEN (NO 2) [2016] FamCA 978

FAMILY LAW – COSTS – Between parties – Whether circumstances justify a costs order – Whether the father should be responsible for costs – Where the orders made are substantially similar to those sought by the mother – Application dismissed.

Family Law Act 1975 (Cth) ss 117(1), 117(2) and 117(2A)

APPLICANT: Ms Cullen

RESPONDENT: Mr Cullen

FILE NUMBER: BRC 10396 of 2010

DATE DELIVERED: 17 November 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: Last Submissions received 7 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Martinovic

SOLICITOR FOR THE APPLICANT: Hogan Stanton Lawyers

COUNSEL FOR THE RESPONDENT: Ms Pendergast

SOLICITOR FOR THE RESPONDENT: Northside Family Law

Orders

1. That in the event that the father, Mr Cullen, has not already paid half of the costs of Dr G, Dr F and Dr D having to produce documents and give oral evidence to the Court at the trial of the substantive parenting proceedings, he shall pay the mother, Ms Cullen, the sum of $2,078.87 within two calendar months of the date hereof, such sum being my calculation of half of the conduct money paid to, and the witness expenses charged by the doctors, Dr G, Dr F and Dr D, in this matter, and in so far as the mother’s Application in a Case seeks orders that the father pay her costs in excess of that, it is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cullen & Cullen (No 2) 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 BRISBANE

FILE NUMBER: BRC 10396 of 2010

Mr Cullen

Applicant

And

Ms Cullen

Respondent

REASONS FOR JUDGMENT

1. On 1 March 2016, I made final parenting orders and published my reasons for making those orders in contested parenting proceedings between these parties after having previously heard a five day trial. By those orders, equal shared parental responsibility for their two children was conferred on both parents, save for the mother being given sole parental responsibility for health and education decisions pertaining to the youngest child, who is autistic.  The orders also varied existing orders that had been made with the consent of the parties several years prior for the children to live week about with their parents. By my orders, the children now live principally with the mother and spend regular time with their father on alternate weekends, during school holidays and on special days in their lives.

2. The mother, having now spent around $240,000 on legal costs and outlays in these proceedings, has made an application that the father pay her costs on an indemnity basis. She has filed a number of affidavits in support of her costs application and counsel has provided written submissions in support. The father filed a number of affidavits and written submissions from counsel opposing the mother’s application and seeking to have it dismissed.

3. As is to be expected, there is no dispute between the parties as to the applicable law by which the application is to be determined. Each acknowledges that s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides a general rule that each party to proceedings under the Act shall bear his or her own costs of the proceedings, subject to the Court determining that there are circumstances justifying the making of an order for costs (s 117(2)).

4. The matters that might support a finding that a costs order is justified are not limited (s 117(2A)(g)), but it is mandatory, when considering what, if any, order should be made to have regard to a number of matters that are specified in s 117(2A)(a)-(f).

5. For the mother, it is submitted that the comparative financial circumstances of the parties, particularly the fact that the father has more net assets and a better income and earning capacity than the mother, weighs in favour of the costs order she seeks. Reference is also made to the fact that the mother borrowed the money to pay her legal costs and outlays and mortgaged her home to do so.

6. Counsel for the mother also submits that the fact that the parenting orders ultimately made were not much different to the orders sought by the mother, showing that the father was “mostly unsuccessful” in the proceedings, is a justifying factor. Counsel also submits that fact is to be combined with the fact that early in the proceedings the mother made a written offer to settle that was in accord, essentially, with the final orders that she sought in the proceedings, which the father did not accept, giving extra weight to her claim for him to pay her costs at the end of the proceedings.

7. Finally, counsel for the mother submits that the father’s conduct that led to the re-opening and litigation of their parenting dispute that had been consensually resolved by them some years before, adds even further weight to the mother’s claim for costs. Counsel actually goes on to submit that the circumstances are “exceptional” so as to justify costs being ordered to be paid on an indemnity basis. 

8. I have in those few paragraphs summarised, in very brief form, what I consider the lengthy affidavits of the mother and the submissions of her counsel essentially distil down to. Those affidavits and written submissions are detailed and lengthy and demonstrate that a considerable amount of thought and preparation have been put into them. The fact that the mother deposes to having spent approximately $45,000 just on this costs application alone, after delivery of my judgment, also reflects the amount of work put into her application for costs.

9. I do not wish my short summary of what I perceive to be the arguments of the mother in support of her costs application to be taken as disrespect for the amount of work done and the clear feelings the mother demonstrates in all of the material that has been filed in support of her application.  However, having read all of the evidence that was relied upon at the trial, having listened to the oral evidence over the five days of trial, having read the extremely lengthy and passionate written submissions that were filed after the trial concluded and, now, having read all of the voluminous material filed in support of the costs application, I am not persuaded that the circumstances justify an indemnity costs order being made against the father.

10. The co-parenting relationship between these two parties has, apparently, never been without substantial difficulties. I consider it impossible to lay the responsibility for those difficulties solely at the feet of the father. With respect, the personalities of both parents do not appear to be ideally suited to a co-operative, working parenting relationship between them. That I made the parenting orders that I did, changing the children’s living arrangements from equal time, week about with each of the parents to principally living with the mother and spending less time with the father should not be interpreted as a finding that the father is completely responsible for the problems these parents have faced in their relationship. That my orders placed the children principally in the mother’s care should not be seen as equivalent to absolution of the mother from any responsibility for the co-parenting difficulties.  

11. The determination of parenting orders in the complex, high conflict cases that so often come before this Court is generally not as simple as determining that one parent is a good parent and one parent is a bad parent. Though, of course, it can be, it is generally not as simple as finding that but for the actions of one of the parents, the proceedings would not have taken place. Indeed, I expect it was with an understanding of this very point that Parliament enacted s 117 as it is, commencing with the general rule that each party shall bear his and her own costs in proceedings under the Act.

12. Further, not only do I not consider an indemnity costs order against the father justified in this matter and notwithstanding the enormous sum of money the mother has spent on these proceedings, including this costs application, I am far from convinced that the father should be ordered to pay all of the mother’s costs even assessed on something less than an indemnity basis. All that said, there is but one part of the mother’s application about which I am persuaded that the circumstances justify the making of a costs order.

13. As I said in my reasons for judgment, I was greatly assisted in the determination of the parenting orders that I considered proper by the evidence of a number of experts who gave evidence at the trial. In particular, Dr D, Dr G, Dr F, Dr H and the report writer, Mr E, all came to Court and gave oral evidence that was of importance in the matter. Each of those experts charged fees or were paid conduct money to attend and give evidence.

14. There was no Independent Children’s Lawyer in the case who might, in the normal course, have adduced some or all of that evidence. In the absence of an ICL, there was significant dispute between the mother and the father about the need for these witnesses to give evidence. The mother and her legal representatives considered that these experts should give evidence. They were experts who had treated or were treating the autistic child, or who had provided a report about him for the purposes of the proceedings. Mr E was the family report writer and Dr H was the mother’s treating psychiatrist.

15. In the end they were all brought to Court by the mother’s legal representatives to give their evidence at the trial. Each witness was questioned by counsel for the father as well as counsel for the mother. As I understand matters, Mr E charged each parent equally in respect of the costs of his reports and attendance. That seems to me, quite appropriate. Dr H, who was the mother’s treating psychiatrist, was relied upon by the mother and was appropriately paid for her report and attendance by the mother. However, Dr G and Dr F were paediatricians who gave evidence about their treatment of the parties’ autistic child and their dealings with the parents and Dr D was the paediatrician who saw the parents and the autistic child and reported to the Court in accordance with the Court’s direction. Nevertheless, the mother says in her evidence that she paid such fees as those doctors required to produce documents pursuant to subpoena that issued out of the Court and to attend Court and give their evidence.

16. The evidence shows that the mother’s legal representatives considered that these witnesses were objectively necessary for the trial to proceed on appropriate evidence. The evidence also shows that the mother’s legal representatives sought contribution by the father to the costs of getting those witnesses’ evidence before the Court. Those efforts were initially unsuccessful and the mother says she met all of those costs. However, the evidence shows that after the trial concluded the father told the mother that he would pay half of Dr G’s costs and half of Dr D’s as he had learned much from their evidence. Now, the mother asserts that the father still has not contributed equally to meeting those costs.

17. Curiously though, the father says in paragraph 16 of his affidavit filed 30 September 2016, that “as far as I am aware, I have paid half of … Dr F and Dr D’s attendance fee.  … Dr G did not charge us.”  From the copies of the invoices from Dr F, Dr G and Dr D sent to the mother that she adduced into evidence, it is not apparent to me that the amount billed by each of them is only half of their fee and that they have otherwise invoiced the father for the other half. It may be that they have and the mother is simply not aware of that. In any event, I consider this a matter that the legal representatives of both the mother and the father and the doctors can readily reach agreement upon.

18. I am of the view that if it is in fact the case that the father has not paid half of the costs of getting the evidence of those three doctors before the Court that he should pay half of those witness attendance fees charged by Dr G, Dr F and Dr D for them to come to Court and give their oral evidence, as well as half of the amount of conduct money paid to each of those doctors for them to produce their documents and give oral evidence to the Court pursuant to subpoena.

19. As I understand the mother’s evidence, Dr D was given $100 when served with the subpoena as conduct money for him to be able to comply with it. Drs G and F were each given $50 when served with subpoena, for the same reason. Dr D was paid $1,650 by the mother as attendance fees for the time he spent coming to Court and giving oral evidence. For some reason, Dr G only charged the mother $17 for that and was paid. Dr F was paid $2,290.75 by the mother for his attendance at Court to give his oral evidence.

20. Accordingly, the only costs order I will make in this matter will be one that requires the father to pay the mother half of the conduct money paid to the doctors when served with subpoena and half of the amounts they charged for witness attendance fees within two calendar months, in the event that he has not already paid half of those costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 17 November 2016.

Associate:

Date:  17 November 2016