DERHAM & MACKLIN

[2019] FamCA 529

FAMILY COURT OF AUSTRALIA

DERHAM & MACKLIN [2019] FamCA 529

FAMILY LAW – COSTS – Where the mother seeks orders that the father pay her costs of the parenting proceedings on a party/ party basis – Where circumstances do not justify an order for costs – Application dismissed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.08

D & D (Costs) (No. 2) (2010) FLC 93-435
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Derham

RESPONDENT: Mr Macklin

INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

FILE NUMBER: PAC 4818 of 2016

DATE DELIVERED: 9 August 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: In chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self- represented

SOLICITOR FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

Orders

1. That the mother’s application for costs be dismissed. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Derham & Macklin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4818 of 2016

Ms Derham

Applicant

And

Mr Macklin

Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgment concerns an oral application for costs made by the self-represented mother, the respondent in a parenting application initiated by the father. The mother seeks an order that the father pay her costs in relation to the proceedings incurred at a previous time when she was represented.

2. The proceedings between the mother and the father concerned an application brought by the father to spend time and communicate with the children of the relationship. On 20 March 2019 the parties reached a final agreement in relation to the father’s time and orders were made with the parties’ consent. On this date, the mother made an oral application that the father pay her costs of the proceedings which was opposed by the father.

3. The parties agreed that mother’s application for costs could be dealt with in chambers after submissions had been filed. Accordingly, orders were made for the mother to file a Minute of Order, affidavit, Financial Statement and an outline of written submissions and for the father to file his material in relation to the application. Following the receipt of submissions from both parties judgment was reserved on 15 May 2019.

4. The question for me to determine is whether there are circumstances that justify departing from the usual rule that each party shall bear his or her own costs.

Background

1. The father initiated proceedings concerning parenting arrangements for the three children of his relationship with the mother in October 2016. In his Initiating Application the father sought orders that he spend defined time with the children including each alternative weekend, one afternoon a week after school, half the school holidays, and special occasions and that he be permitted to communicate with the children at his discretion and be “involved in their schooling decisions.”

2. In her Amended Response filed 29 September 2017, the mother sought that she have sole parental responsibility for the children, that the children live with her and spend no time with or have no communication with the father. She sought that the father be restrained from making any contact with her and that she be given authority to obtain passports for any of the children without the consent of the father.

3. On 16 January 2017 the parties attended upon a family consultant for the purposes of the Child Responsive Program. The father conceded that he had not played any role in the children’s lives following the parties’ separation in 2012, some years prior to the filing of the application. The father acknowledged a significant history of drug addiction and mental health issues. The mother reported serious allegations of family violence perpetrated by the father towards she and the children, including allegations that the father had tried to kill her on a few occasions.

4. On 15 August 2017 the father failed to attend court and the proceedings were listed for an undefended hearing. However when the matter next came before the court for the anticipated undefended hearing, the father attended and a Family Report was ordered.

5. In April 2018 the parties attended upon a family consultant for the preparation of a Family Report. The father acknowledged that he had perpetrated significant violence towards the mother but asserted that such violence was solely related to his drug use. The family consultant also noted that documents produced on subpoena showed that the Department of Family and Community Services (“the Department”) and the Joint Investigation Response Team (“JIRT”) had held concerns that the mother’s partner had sexually abused one of the children.

6. On 18 June 2018 at the court event in which the Family Report was to be released the concerns associated with the allegations against the mother’s partner were raised in court by the ICL. Orders were made pursuant to section 69ZW of the Family Law Act 1975 (Cth) for the Department to provide the court with documents in relation to this allegation. An order was also made with the consent of the mother that she be restrained from permitting her partner to spend time with the children alone, and she was ordered to file an updated affidavit. With his consent, an order was also made restraining the father from approaching the children in any manner. It was foreshadowed at that court event that after the documents from the Department were received and the mother’s affidavit filed, the ICL was to consider whether to engage the parties in family dispute resolution in an effort to resolve the parenting dispute.

7. The relevant documents were filed and the parties participated in family dispute resolution and reached a final agreement as to parenting. The final orders made by consent provided for the mother to have sole parental responsibility for the children who were to live with her. The orders provided for the father to spend time with the children as agreed between the parties in writing and that the children be at liberty to contact the father.

The law

1. The mother is seeking that her costs in relation to the parenting dispute be paid by the father on a party/ party basis in the sum of $9,898.95. The mother annexes to her affidavit a document titled “Memorandum of Party/Party Costs” which appears to be a document the mother has prepared herself. The mother asserts that she has been billed by her former solicitors a total of $15,994.10 in legal fees.

2. Applications for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule as being that each party is to bear his or her own costs.  That principle is, however, subject to subsection (2) which gives a Court a discretion to make an order for costs if there are circumstances that it in the opinion justify it in doing so.  Any such order for costs is to be pursuant to section 117(2) “as the Court considers just”.

3. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.The relevant matters are considered as follows.

The financial position of each of the parties to the proceedings

1. The mother asserts that she is in a poor financial position. In her Financial Statement the mother deposes that her total average weekly income is $1,830 comprising of her $1,280 salary, $400 in government benefits and $150 in child support from the father of her other two children. In her written submissions the mother indicates that at the time of filing she was on annual leave and that from April 2019 to the end of the year she will be taking unpaid leave to care for the children. The mother submits that she will be made redundant from this role in the future.

2. The mother deposes that her total personal expenditure each week is $2,280 which largely consists of expenses relating to the five children in her care: three being the children of the parties’ relationship and another two children from another relationship. The father does not currently pay any child support.

3. It is apparent from the mother’s Financial Statement that she is the sole owner of a property with a value of $990,000 encumbered by a mortgage of $354,000. She also owns a motor vehicle worth $28,000 and household contents at $1,000 in value. The mother indicates that she has a superannuation entitlement of $250,000. Otherwise the mother has a credit card debt of $600.

4. The father indicates in his Financial Statement that he is employed as a truck driver and earns $1,390 per week but submits that he is employed casually in this capacity so his weekly income varies. He indicates that his weekly expenditure is approximately $1,275.70. The father deposes that the only assets he owns are a motor vehicle, some household contents and other personal property with an estimated total value of $31,800. The father has a superannuation entitlement to the value of $13,000 and total liabilities comprising of a loan and lease are estimated at $31,800.

5. Each party thus has some capacity to satisfy any order for costs. In any event, even if the father did not have the capacity to pay, impecuniosity is no bar to the making of an order for costs.[1]   

   [1]D & D (Costs) (No. 2) (2010) FLC 93-435.

The conduct of the parties to the proceedings in relation to the proceedings

1. The mother asserts that the father deliberately conducted his case in a manner that would delay the proceedings so she would incur unnecessary legal costs. The court records indicate that the father failed to attend court on three occasions. On one such occasion, it was noted that the matter was expected to be heard undefended given the father’s non-attendance and his failure to take steps to obtain legal aid. On one other occasion the father was absent, court records indicate it is likely he was not informed of the date.

2. Relevantly, the father also failed to comply with the directions of 15 August 2017 that the parties file a single consolidated affidavit and any amended Application or Response. It should also be noted however that the mother did not comply with these orders entirely as in her consolidated affidavit she sought to rely on a previous affidavit filed.

3. Otherwise insufficient evidence has been provided as to the mother’s contention that the father caused deliberate delay to the proceedings.

Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. Neither party was wholly unsuccessful or successful in the proceedings. The final orders made by consent were not wholly the orders sought by either party.

Such other matters as the court considers relevant

1. The mother submits that because the proceedings have not changed the parenting arrangement in existence prior to the father’s application for orders the cost order should be made in her favour. I do not regard this a weighty factor as there is some difference between an informal arrangement and enforceable orders.

2. Some weight may be attached to the fact that the mother was substantially successful in her application as the orders made with the consent of the parties were made largely in the terms as sought by her.

3. A final matter to consider is that it appears that the mother has already paid the costs which are the subject of this application. This indicates in my view that the mother historically had the financial capacity to meet her legal costs, a factor to which some weight should be attached in determining this application.

Conclusion

1. The High Court in Penfold v Penfold[2] held that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs.  Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.

   [2] (1980) 144 CLR 311

2. Having regard to the relevant factors and giving weight to them for the reasons given, there is insufficient justification to depart from the usual rule. Accordingly the application for costs is dismissed.

I certify that the preceding twenty-eighty (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 August 2019.

Associate: 

Date: 9 August 2019