Defries & Kemeny (No 2)
[2022] FedCFamC1F 138
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Defries & Kemeny (No 2) [2022] FedCFamC1F 138
File number(s): BRC 10850 of 2013 Judgment of: BAUMANN J Date of judgment: 15 March 2022 Catchwords: FAMILY LAW – COSTS – Application for costs by the mother in respect of parenting proceedings in which final consent orders were made – Where the parenting proceedings were prolonged by complex property proceedings until the matters were bifurcated in March 2020 – Where the mother’s Application for costs in respect of the parenting proceedings is dismissed. Division: Division 1 First Instance Legislation: Family Law Act 1975 (Cth) s 117 Number of paragraphs: 23 Date of last submission/s: 23 December 2020 Date of hearing: On the papers Place: Brisbane Solicitor for the Applicant: Evans Brandon Family Lawyers Solicitor for the Respondent: Hofstee Lawyers ORDERS
BRC 10850 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BINGHAM (AS CASE GUARDIAN FOR) MS DEFRIES
Applicant
AND: MR KEMENY
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
15 MARCH 2022
THE COURT ORDERS:
1.That the mother’s Application for costs incidental to the parenting proceedings be 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 Defries & Kemeny has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
This is an Application for costs made by the mother in respect of parenting proceedings, in which final consent orders were made on 11 November 2020; what was to be the first day of a three day trial.
In her Application, the mother seeks:
1.That the Respondent Father pay the costs of and incidental to the parenting proceedings incurred by the Applicant Mother on or after 3 August 2017, being the date on which the Affidavit of Mr M which exhibited the final updating family report was filed.
2.That the costs payable by the Respondent Father to the Applicant Mother:-
a. Be paid on an indemnity basis or, in the alternative, on a party/party basis;
b. Be paid in an amount to be fixed by the Court or, in the alternative in such amount as may be assessed; and
c. Be made payable by the Father at the time of final property settlement Orders being made.
3.That the Respondent Father pay the Applicant Mother’s costs of and incidental to this application.
(As per original)
RELEVANT FACTUAL BACKGROUND
The brief relevant background to this Application for costs is as follows.
The mother commenced the proceedings to which this Application for costs relates on 10 December 2013 in the Federal Circuit Court of Australia. In that Application, she sought, inter alia, that the children live with her, sole parental responsibility and for the children to spend time with the father as agreed between the parents.
The father filed his original Response to that Application on 5 February 2014 in which he sought, inter alia, equal shared parental responsibility and for the children to live with each parent in a week about arrangement. The father also introduced property proceedings through this Response.
The father then amended his position by way of an amended Response filed on 23 June 2017. In that Response he sought that the children live with him and that he have sole parental responsibility. The father also sought various restraints against the mother and maternal family but did not specify what time the children should spend with the mother.
On 8 July 2019, the mother’s solicitors wrote to the Independent Children’s Lawyer (“ICL”) and the father’s then solicitors, Wiltshire Family Law, in response to correspondence received from the ICL, confirming her position that there should be no change to the interim parenting arrangements, that being that the children remain living with her and spend no time with the father (see Annexure E to the mother’s affidavit filed 9 December 2020).
On 28 May 2020, I made Orders bifurcating the parenting and property proceedings and listed the parenting proceedings for a three day trial commencing 11 November 2020. The property proceedings are still ongoing.
On 1 July 2020, the mother filed an amended Initiating Application, formally updating her position that the children live with her and continue to spend no time with the father.
The father’s affidavit filed 4 November 2020, ahead of the scheduled parenting trial, stated that he sought “Orders in respect of X as set out in the Response filed in these proceedings”, ultimately confirming that he continued to seek time with his daughter, X. It should be noted at this point that, as can be seen by a notation in Orders made by Registrar Coutts on 30 August 2018, the father, from around that time, no longer sought orders in respect of his son, Y, on the basis that he was 17 years old. Y reached 18 years of age in 2019.
On the afternoon of 10 November 2020, the day before the parenting trial was scheduled to commence, the parties emailed signed consent orders to my chambers. The father also filed written submissions that afternoon, in which the position in the consent orders was adopted. As mentioned, those orders were made by consent the following day and provided, inter alia, that:
(a)the mother have sole parental responsibility for X;
(b)X live with the mother; and
(c)X to spend no time with the father.
Those Orders also provided for the filing of any Application for costs, together with supporting affidavit and written submissions, as well as for the filing of material in response, with the matter to be dealt with on the papers in chambers by me. The Order by which this Application for costs was to be dealt with in chambers was not made by consent.
Accordingly, the mother filed her Application for costs on 9 December 2020, along with a supporting Affidavit and written submissions. The father filed his Response on 23 December 2020, also with a supporting Affidavit and written submissions.
RELEVANT PRINCIPLES
The general rule in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) is that each party shall pay their own costs of the proceedings. Following a consideration of the factors set out in s 117(2A), if the Court is satisfied that circumstances exist which justify an order for costs, then such order as is proper may be made.
If the Court considers an order for costs is justified, then the Court may consider costs assessed on an indemnity basis being ordered but generally only in exceptional circumstances.
SHOULD AN ORDER FOR COSTS BE MADE?
I make the following findings in respect of the s 117(2A) factors, namely:
(a)the father submits that the mother has given evidence that she holds considerable assets to the value of approximately $2 million and he alleges “she holds considerably more” while the father has received a disability pension for approximately the last two and a half years. I accept on balance, the mother is in a superior financial position to the father;
(b)For a significant part of these prolonged property proceedings, the father was unrepresented. However, when the matter was bifurcated and the property proceedings listed for trial, consideration of the impact of s 102NA of the Act arose, and because of the mandatory application of the restriction to cross-examine a party, the father obtained Legal Aid funding under the cross‑examination scheme. The father confirmed that grant of aid issued around 26 August 2020. Beyond the mere granting of aid, is, I infer, the likelihood that the father obtained objective legal advice about what orders the court may make for their teenage children, particularly X;
(c)The mother submits that the father’s decision to continue with the proceedings “following the release of the final family report was, in addition to being futile, something that set out to have prolonged and unnecessary effects of a negative kind and trigger significant costs for the [m]other”. The mother makes this submission on the basis of the family report writer’s opinion in his final report that he “cannot recommend any confident recommendations to inform any changes to current care and contact arrangements”. The father submits he “conducted himself appropriately throughout the proceedings”, had a right to pursue his case in the way he did given the “steadfast position of the mother and the relatively young and impressionable ages of his children” and had prospects of success but that as the children got older, they became “engrained in their positons shifting his prospects incrementally each year that past [sic – passed]”;
(d)The mother contends that the father has been wholly unsuccessful on the basis that the final consent orders are “substantively identical” to the orders sought by the mother, whereas no orders sought by the father were made on a final basis. Conversely, the father submits that he was not wholly unsuccessful as the “proceedings were complex and intertwined with the property matter”; with the proceedings only being bifurcated by Orders made 28 May 2020. The concept of being “wholly unsuccessful” in contested parenting proceedings does not easily apply to parenting proceedings where, although adversarial in nature, the paramount consideration is the best interests of the children. The circumstances arising from the children spending no time with the father since 2013 are complex and were shaped by the criminal proceedings referenced to below. I do not regard the father, who on his evidence had a reasonable relationship with the children prior to the events of December 2013, as not genuine in seeking that the children spend time with him. As he himself acknowledges, the fact that the proceedings were prolonged (awaiting the criminal trial) and the children grew older with no time spent with him, meant that he was placed in a position of having to, as he saw it, walk away from his children or fight on. No one would assume that is an easy decision;
(e)The mother submits that despite being asked to consider whether he either wished to make any settlement proposal or to proceed, the father failed to take opportunities to resolve the matter until his first offer showing he was willing to depart from his position was made on 9 November 2020; two days before the trial was to commence. The father, acknowledging that it was the mother’s longstanding position that he have no time with the children, submits that “[n]o offers of compromise were made despite the father desiring supervised time”; and
(f)In respect of other relevant matters, the mother contends that “it is highly relevant that since the release of that final family report in 2017, no material facts have changed in the proceedings” other than the ages of the children which, she says, supported her Application given their views were consistently maintained. Further, the mother submits that the only material change was that her daughter’s wishes to spend no time with her father became “even more resolute”. Although the father says all the legal costs of the mother have been funded from the matrimonial assets, any use of assets from the marriage is likely to be an issue in the property proceedings. Of more relevance, it seems to me, is that the mother was the complainant in respect of serious criminal charges where she says she was assaulted and seriously physically injured by the father. However, the father was acquitted of those charges in circumstances where a jury was not satisfied beyond reasonable doubt that the father was the perpetrator. That verdict had not in any way convinced the mother she was wrong. However the children, the subject of those parenting proceedings, were clearly aware of the charges and the mother’s views. The family report, which was but part of the evidence, reflected their understandable alignment with their primary carer, the mother. I regard these issues as relevant.
CONCLUSION
Before the Court considered the basis of calculation of costs, it is required to determine whether the circumstances justify an order for costs, being a departure from the principle enshrined in s 117(1) of the Act.
I accept the family report of Mr M (the third such report) was a powerful piece of evidence, however I do not accept the submission of the mother that “in circumstances where a party properly advised should have known that he had no chance of success”, the father’s actions in persisting for orders to spend time with at least X, initially supervised, was deserving of a costs order at all (even on the scale).
On reflection, perhaps the father, if properly advised before the appointment of the lawyers under the cross-examination scheme, may have compromised earlier. Whilst I accept the relationship between the mother and father is “hateful”, until the proceedings were bifurcated, the continuance of parenting proceedings were also fuelled by the complex property disputes (involving other family members as well).
A parent’s desire to spend time with their child is an intense and emotional feeling, not easy to abandon. Although I accept it would have been better for the “settlement” to have been reached earlier than it did, the differences I have discussed in these reasons made that difficult for the father.
At least by settling the matter by the consent orders, the mother was relieved of some financial impact and clearly significant further emotional pain.
In the exercise of my discretion, I am not satisfied that the circumstances justify an order for costs.
As a result, the mother’s Application for costs of the parenting proceedings is dismissed. There will be no orders as to the costs incurred in the Application for costs. For completeness, I note that the Independent Children’s Lawyer made no application for costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 15 March 2022
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