Davison & Jenkins
[2021] FedCFamC1F 243
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Davison & Jenkins [2021] FedCFamC1F 243
File number(s): SYC 533 of 2017 Judgment of: CLEARY J Date of judgment: 27 August 2021 Catchwords: FAMILY LAW – COSTS – Where the husband seeks that the wife pay indemnity costs – Where the wife opposes an order as to costs – Consideration of s 117(2) factors – Where there are exceptional circumstances to award costs on an indemnity basis – Ordered that the wife pay the husband’s costs on an indemnity basis from 21 July 2018, being the day after the interim hearing to the conclusion of trial. Legislation: Family Law Act 1975 (Cth) s 117 Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 23 August 2021 Place: Newcastle The Applicant: Self-Represented The Respondent: Self-Represented ORDERS
SYC 533 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR JENKINS
Applicant
AND: MS DAVISON
Respondent
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The Respondent shall pay the costs of the Applicant on the indemnity basis for the period from 21 July 2018 to 20 May 2021 in the sum of $58,294.00 within 3 months of the date of these orders.
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 pseudonyms Davison & Jenkins is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
CLEARY J:
INTRODUCTION
This is an application for costs arising from a trial conducted over four days on 13 to 16 April 2021 in respect of a parenting dispute. Orders and reasons were delivered on 20 May 2021.
The applicant is the father of the two subject children. He was the respondent at trial. The applicant seeks costs on an indemnity basis in the sum of $89,101.90 for the period from 28 January 2017 to 20 May 2021. The applicant has complied with the obligation to provide to the Court the cost disclosure and costs agreements of his solicitor and counsel.
The respondent to the application is the mother of the subject children. She opposed the application. In her Response to the Application in the Case, the mother sought an order for dismissal of the matter. This reflected a misinterpretation of the rules of Court.
The mother, representing herself as she had done at trial, accepted from the Court that she had been wrong about the father’s application, that he had a statutory right to make the application for costs after the conclusion of a trial. It was clear on the face of the response document that the mother opposed the making of a costs order on any basis in the event that it could be brought.
The costs application was made within time, filed on 17 June 2021, and was served.
The parenting trial was the culmination of four years of dispute and litigation following separation of the parties in early 2017. The mother filed an Initiating Application within days of separation. The orders ultimately made by the Court were very much in accordance with the application of the father and were supported by the Independent Children’s Lawyer.
THE EVIDENCE
The documents relied on in respect of the application were as follows:
The Applicant Father
(a)Application in a Case filed 17/06/2021;
(b)Affidavit of Mr Jenkins filed 16/06/2021;
The Respondent Mother
(c)Response to an Application in a Case filed 16/08/2021;
(d)Affidavit of the Ms Davison filed 16/08/2021.
There was also a Case Outline provided by the respondent on 20 August 2021.
THE LAW
The relevant law, section 117 of the Family Law Act 1975 (Cth), states, subject to subsection (2) of that section, that:
Each party to proceedings shall bear his or her own costs.
Subsection (2) provides that:
If the Court is of opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs as the court considers just.
If there are such circumstances, there are mandatory considerations to which the Court must have regard.
In this matter I do consider that there are circumstances which trigger the discretion of the Court to make an order for costs. These are the factors:
The mother, representing herself, filed several voluminous affidavits at the commencement of proceedings and throughout the four year period which were repetitive and contained irrelevant information with an equally unjustified number of annexures.[1] I accept that the father felt obliged to read all of the material and formulate instructions in response.
[1] Davison & Jenkins [2021] FamCA 317, paras 41, 50 and 51.
Of greater significance, the mother persisted with her application over four years without reference to changing events and two sets of interim orders.
Her application for final orders remained as an application for sole parental responsibility, residence with her, a change of schools to the local area of the home of the maternal grandmother, where the mother lives, and limited defined time with the father, not including holiday time. This was despite the fact that on 10 April 2017, orders were made by consent for equal shared parental responsibility and effectively, equal shared care of the children.
On 20 July 2018, further interim orders were made.
The father was awarded sole parental responsibility for medical issues for the children in circumstances where the mother had cancelled therapeutic appointments for the children to their detriment and declined to participate in enrolling the youngest child to commence school.
The Court concludes that the mother persisting with her original application in those circumstances was unhelpful to the children in the context of the parenting dispute, but in this context of costs, unreasonable in the conduct of the litigation.[2]
[2] Davison & Jenkins [2021] FamCA 317, paras 134-136.
The discretion of the Court to order costs having been triggered, I am obliged to consider the circumstances set out in subsection (2) referred to above.
MANDATORY CONSIDERATIONS
Financial circumstances
The father has continued with employment as a security adviser for a bank. He earns a reasonable income. His work is arranged around the needs of the children, particularly therapeutic appointments for the younger child who is in his care for 10 days a fortnight.
The mother is an allied health professional. She has recently been assessed to pay child support of $175 a month.
Accordingly, the majority of the financial expenses for the children is continuing to be borne by the father.
The mother informed the Court that she is continuing to live in the home of her own mother and that she is not in paid employment. She informed the Court that she is now studying for a degree through R University. The mother has made a choice not to work to earn an income. She has had paid employment and has been self-employed, and had been during the course of the parties’ relationship.
The evidence at trial about her financial position was opaque. The mother had not lodged tax returns[3] for the period covering the years when the mother did consultancy work.
[3] Davison & Jenkins [2021] FamCA 317, para 114.
She advised the Court that she had lost her employment on 12 March 2021 just prior to trial. Her financial position was, at all times, unclear. There has been a property settlement between the parties, concluded. In any event, the mother has the capacity, qualifications and experience to work as an allied health professional.
The father funded legal representation throughout, solicitor and counsel, at a total cost of approximately $90,000. The mother represented herself at trial after withdrawing instructions from her lawyers and making an application for an adjournment.
Conduct of the parties
The mother filed voluminous documents. She declined to participate in mediation before commencing proceedings. The mother made extensive allegations of family violence which were not substantiated to any extent.[4]
[4] Davison & Jenkins [2021] FamCA 317, paras 46-49 and 53-60.
The father, in submissions, in respect of this application, pointed to an email of the mother annexed to her affidavit[5] to the proposed mediator in 2017, where the mother referred to “weighing up the pros and cons for the children” before asking for an exemption certificate on the basis of family violence, rather than proceeding with the mediation. That course of conduct does suggest decision making rather than necessity in seeking the certificate.
[5] Affidavit of the mother filed 16/08/2021, Annexure C.
The mother has been wholly unsuccessful
In parenting proceedings, it is not unusual for one or both parents to be unsuccessful with the orders that they are seeking. And in this case, it would be unreasonable for the mother to bear the whole of the father’s costs from the outset of the proceedings.
When parties disagree, the Court is available to quell the dispute. However, the prospect of a change from sole parental responsibility to the father on medical issues, and also for the enrolment at school of the younger child, and shared care to sole parental responsibility, residence and limited deferred time to the mother, was nil in the circumstances of this case.
From 21 July 2018, the day after the interim hearing, which saw the father allocated parental responsibility for medical issues and enrolment at school, to conclusion of the trial on 16 April 2021, it must have been clear that the mother could not be successful with her application. It must have been obvious to her, on a legal basis, that her conduct in cancelling medical appointments for the children and resisting enrolment at school was not considered appropriate for ongoing shared parental responsibility. Her application for sole parental responsibility, on a final basis, was unrealistic, given the 2017 consent orders as well as the allocation of parental responsibility.
For these reasons, I consider that the matter proceeding to trial, after the outcome of that interim hearing in 2018 was simply not realistic. The mother had been represented until the first morning of the first day of trial. The mother withdrew her instructions to counsel and solicitor. Clearly, she had had the benefit of legal advice to that point.
CONCLUSION
For these reasons, including the adherence to a position which was untenable, I conclude that there should be an order for costs and that the situation does rise to the unusual circumstances which are required to justify the indemnity costs. However, the order is made, from 21 July 2018 to 20 July 2021 being conclusion of trial in the sum of $58,294 and, in the absence of the mother, three months is allowed for that sum to be paid.
An order is made accordingly.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 27 August 2021
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