Daniels and Egan

[2013] FamCA 355

FAMILY COURT OF AUSTRALIA

DANIELS & EGAN [2013] FamCA 355

FAMILY LAW – COSTS – Mother to pay the father’s costs

APPLICANT: Mr Daniels

RESPONDENT: Ms Egan

FILE NUMBER: MLC 7837 of 2008

DATE DELIVERED: 23 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 23 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Robinson Gill

COUNSEL FOR THE RESPONDENT:	Mr Marchetti
SOLICITOR FOR THE RESPONDENT:	Moore’s Legal

Orders

So the orders that I will make today are as follows:

1. That the mother shall pay the father’s costs of $4,500 as ordered by FitzGibbon SR on 10 January 2013, such sum to be paid to the father’s solicitors by 23 May 2013.

2. That the mother shall pay the father’s costs otherwise of these proceedings fixed at $6,856, such sum to be paid to the father’s solicitors by 24 June 2013.

3. That otherwise all existing applications shall be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniels & Egan 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 MELBOURNE

FILE NUMBER: MLC 7837 of 2008

Mr Daniels

Applicant

And

Ms Egan

Respondent

REASONS FOR JUDGMENT

1. I was hearing this complex case last year about the three children, J, K and L, when the parties reached their own resolution.  It was in late August.  I made orders by consent. 

2. It was a case where there was obviously enormous conflict between the parents and I can say I had heard enough evidence to be quite worried about the attitude being instilled in the children by Ms Egan, (“the mother”).

3. Unfortunately, the matter returned to court within a relatively short space of time.  On 10 January this year, Registrar FitzGibbon made a recovery order in relation to the three children in favour of Mr Daniels, (“the father”), and ordered that the mother pay $4,500 costs in relation to those recovery order proceedings, within 60 days. 

4. The mother filed an application to review that application.  Between the time of the review and when the matter came before me on 8 March this year, the father had filed an Application in a Case that time on 6 March 2013, seeking a recovery order in relation to the child J, who during a period when the mother was supposed to have had him at his father’s home, he was actually staying with a third party.  The father also sought other parenting orders.

5. When the matter came before me on 8 March, I adjourned it until today.  That was fundamentally because I needed a report from Mr B as to what was going on for J.  Things sounded quite chaotic, and it was insufficient for me to have two diametrically opposed versions from the parents.  I was however extremely concerned that J was with a third party, not with either parent, and not with his father when he should have been.

6. It is true that the father was away on 8 March when the matter was before me, but that, as it turned out, made no difference whatsoever to whether or not the matter proceeded that day.  It was always needing to be adjourned for the reason I have just given.  So the costs order issue was also put off until today. 

7. So there are now two issues before me. 

8. Mr B gave his report, which commented on the ongoing conflict that surrounds the lives of these children.  However, the children’s regime is now back on track, with the children living week about with each parent, that there are no further parenting issues before the Court at this stage. 

9. Then there is the issue as to the payment of the $4,500 costs ordered by Registrar FitzGibbon on 10 January 2013.  The mother does not dispute those costs, but seeks to have the time for payment altered so that she would pay them by 28 June.

10. The father seeks that they be paid within 14 days from today, because already the time frame set out by Registrar FitzGibbon has well and truly expired, and he has been left waiting to get the fruit of that order. 

11. There is also another question of costs today.  The father seeks costs in relation to the proceedings since 10 January 2013, relating to the Application in a Case filed 6 March 2013, the appearance on 8 March, and today’s appearance.  He seeks his counsel’s brief fee for today, the brief fee of counsel on 8 March, and solicitor/client costs.

12. The mother, for her part, says there should be no further order for costs. 

13. Costs are ordered pursuant to s 117 of the Family Law Act.  They are discretionary in nature.  There is a range of matters that the Act sets out for me to take into account in exercising my discretion.  The conduct of the parties and the success in the proceedings form part of the considerations for me, as does each party’s financial position.

14. So far as the application for additional costs is concerned, I am satisfied that the primary responsibility for these proceedings having been necessitated lies with the mother.  The child was in her care.  He was supposed to be with his father.  He was not.  Although I know her case would attempt to distance her from that, I have the residing concern that it is very much more of the same of what I heard when the case proceeded in front of me.

15. That is endorsed in the concerns expressed by Mr B in his report.  Even though he refers to the conflict continuing between the parents and the concern in relation to both parties’ participation, when it comes to whether these children have been free to enjoy the orders that their parents arrived at by consent, he primarily criticises the mother’s attitude.  It is apparent, particularly from Registrar FitzGibbon’s judgment of 10 January 2013, that she even maintains that she was “bullied” into the consent orders in August 2012.  That really does set a backdrop for me as to how the children have most probably been unsupported in their adjustment to these orders, although thankfully they just recently seemed to be back on track.

16. So in terms of conduct, I have a concern primarily about the mother’s conduct, and it is imperative that she has a clear understanding as to the Court’s view about that. 

17. I am satisfied too that in terms of the application brought by the father, he has been successful.  J has been returned to him, and the regime ordered in August has recommenced. 

18. I am satisfied that although it is the father who is in employment and the mother who is not, she has certainly had financial resources that have permitted her to pay him more than $290,000 by way of property settlement, and that have enabled her to pay her own lawyer $11,000.

19. The mother says that she is in receipt of a sole parenting allowance or pension of $290 per week, which she anticipates will shortly be less as she, for various reasons, has to move to a Newstart allowance, and that she survives on that, together with $692 per month in child support.  The $11,000 that she has found for her own lawyer has apparently come from her family. 

20. Although I have no power to make an order against someone who is not a party to these proceedings, I can take into account the fact that someone seems to find resources to pay large amounts of money, including their own private legal fees, when the other party is personally out of pocket for their legal fees.

21. The father is employed.  He earns $95,000 per annum.  He is paying, obviously, the gap between his own legal fees and the amount ordered in relation to the previous orders.  I am told that he has had to pay his lawyer $7000, although the sum recovered was only $4,500.  He obviously pays the child support that I have referred to.  He has his own mortgage of $180,000 and he does have the half-time support of the children that he needs to pay for as well. 

22. I am satisfied that it would be unfair if there were not a costs order in his favour in relation to this second round of proceedings.

23. What I propose is to quite drastically reduce the amount that has been sought.  The brief fee sought by Ms Smallwood today of $2,500, should be $928, on the scale as we have discussed.  Similarly, the fee for Ms Mandelert on the previous occasion should be $928, not $2,500. 

24. I think it is in everybody’s interests if I can fix solicitor/client costs.  Doing the best that I can, and taking into account the fees incurred so far apparently by the mother, I am going to allow $5,000 for the solicitor/client costs.

25. That is a total of $6,856.  Now, that means that there is $4,500 and $6,856.  So far as the $4,500 is concerned, I am going to give the wife now one month to pay, and that would take it to 23 May.  I am going to give another month for the $6,856, which would take it to 23 June. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 23 April 2013.

Associate: 

Date:  23 April 2013