Dickens and Dickens and Anor

[2015] FamCA 255

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS & ANOR [2015] FamCA 255

FAMILY LAW – COSTS – Where the applicant withdrew his contravention application – Where the respondent incurred significant costs in relation to the bringing of the contravention application – Where the respondent seeks indemnity costs – Where the applicant seeks that the costs of the proceedings are reserved – Consideration of s 117 of the Family Law Act 1975 (Cth) – Where the applicant was wholly unsuccessful in the proceedings – Where the Court was of the opinion that the circumstances justified making an order for costs in favour of the respondent – Where the circumstances of the case did not justify making an indemnity costs order – Applicant ordered to pay the respondent’s costs in relation to his withdrawn contravention application on a party and party basis.

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

Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

APPLICANT: Mr Dickens

1^ST RESPONDENT: Ms Dickens

2^ND RESPONDENT: Mr D

INDEPENDENT CHILDREN’S LAWYER: Mr Moylan

FILE NUMBER: SYC 739 of 2010

DATE DELIVERED: 27 January 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 27 January 2015

REPRESENTATION

FOR THE APPLICANT: Mr Dickens, father in person

SOLICITOR FOR THE 1^ST RESPONDENT: Ms Kensell, solicitor of Hamish Cumming Family Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT: Mr Kertesz, solicitor Delaneys Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Moylan, solicitor of Moylan Family Lawyers

Orders

1. That it is noted that in relation to the subpoena served on the Commissioner of the New South Wales Police that the father has indicated that he is satisfied with the production of documents offered by the Police in Court today.

2. That all parties are given leave to inspect the documents produced by the New South Wales Police today.

3. That all parties are given leave to inspect all bundles of documents produced during 2014 by the New South Wales Police.

4. That the father is given leave to withdraw his Contravention Application filed on 15 October 2013 and such application stands withdrawn and dismissed and removed from the Court’s list of active cases.

5. That the father pay the costs of Mr D in relation to his withdrawn Contravention Application filed by the father on 15 October 2013 other than in relation to the actual hearing on 28 January 2014 as agreed or assessed on a party/party basis.

6. That it is noted that the children have been seeing Mr Q and the mother has also attended on Mr Q.

7. That the father’s Application in a Case filed on 27 November 2014 is adjourned to a date to be advised by arrangement with Johnston J’s Associate.

8. That the question of any sanctions against Ms Dickens stand over to await the outcome of the outstanding application against Mr D.

9. That it is noted that the Court records a denial by Mr D that he has contravened an order under the Family Law Act 1975 without reasonable excuse in that on 14 March 2014 he disciplined and punished the child C in breach of paragraph 3 of his undertaking to the Court on 8 October 2012.

10. That the Court notes Mr D’s undertaking through his solicitor to appear at Court on the next occasion.

11. That these proceedings are adjourned part heard to 10.00 am on 17 February 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens and Anor 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 SYDNEY

FILE NUMBER: SYC 739 of 2010

Mr Dickens

Applicant

And

Ms Dickens

1^st Respondent

And

Mr D

2^nd Respondent

REASONS FOR JUDGMENT

1. These are costs proceedings which arise out of the withdrawal by Mr Dickens of his contravention application filed on 15 October 2013, the respondent to those proceedings being Mr D.  I shall refer to Mr D as “the applicant” and to Mr Dickens as “the respondent”. 

2. To put this in context, on 4 September 2014 I commenced hearing three alleged breaches of an undertaking which had previously been given by Mr D.  Mr D is the stepfather of Mr Dickens’ two sons, B, who was born in 2001, and C, who was born in 2003.  There is a long history of litigation in this and other courts between Mr Dickens and the children’s mother, Ms Dickens. 

3. It is said on behalf of Mr D that the bringing of that contravention application has had very significant costs implications for Mr D.  He has been at court on four occasions in respect of the contravention proceedings, including today.  It is said that his costs have been thrown away by the withdrawal of the contravention application today. 

4. Mr Dickens asks the Court to reserve the costs of the withdrawn contravention proceedings to await other applications which he has before the Court.  I do not propose to do that, because I accept Mr Kertesz’s submission that enforcement proceedings are discrete proceedings. 

5. Given the long history of litigation between these parties, in my view it would be unfair to simply reserve the costs which may just get lost with various other matters which are before the Court.  The parties have each had opportunity to put material before the Court in respect of that.  The application for costs, arises out of the particular events that were before the Court today.  Those are matters which are fresh in everybody’s mind.  In my view, in the interests of justice, the costs application ought to be dealt with today. 

6. It is said by Mr Kertesz for Mr D, in support of the application, that there have been now four occasions on which the contravention application has been before the Court.  It was said that those occasions are 28 January 2014, 20 May 2014, 4 September 2014 when it was submitted that the Court was involved in a full day hearing in respect of three matters which were the subject of the alleged breaches and, of course, today. 

7. Sub-section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that the usual position in proceedings under the Act is that each party shall bear their own costs. That is subject to s 117(2) which empowers the Court to make a costs order if there are circumstances which justify such an order. The Court is required to consider the matters set out in s 117(2A) of the Act.

8. The first of these is the financial circumstances of each of the parties.  Each of the parties is in somewhat modest financial circumstances.  I gave opportunity to Mr Dickens to provide updated estimates of various matters that were contained in an old financial statement of his filed on 14 February 2011, affirmed by Mr Dickens on that occasion.  Mr Dickens says that his only source of income currently is Newstart Allowance.  He says that his total property has a value estimated at $8000.  He has superannuation, which he says has a current value of $40 000.  He indicated at Court today that he has found it necessary to make some withdrawals from his superannuation, which appears over a few years to have reduced from in excess of $51 000 to $40 000.  He says that he has liabilities to a total of $75,000.  I accept these matters for the purposes of these proceedings.  He is a certified practising account who has not worked now for some years, Mr Dickens saying that he finds the stress of these proceedings and the amount of time that requires his attention in respect of these proceedings to be such as to preclude him from full-time work.  Having said that, he says that he has been endeavouring to find work, but has been unsuccessful in that.

9. On the other hand, Mr D’s financial circumstances are that he receives the Carer’s Allowance, being the full-time carer for his 80 year old mother, who lives with him.  He says that the Carer’s Allowance is approximately $900 per fortnight and that such is his only source of income.  He lives in a home which he owns with his mother at I Street, Suburb J.  Mr D says, and I accept for the purpose of these proceedings, that that has a mortgage of approximately $490 000 owing on it.  It is not clear to me what the value of the property would be, but I have some very broad and general familiarity with the cost of properties in Sydney, so clearly there would be some hundreds of thousands of dollars of equity in that property.  But it has to be borne in mind that there are two owners of the property. 

10. There was some cross-examination of Mr D by Mr Dickens about how it is that the mortgage repayments which Mr D said come to $4000 a month can be paid when Mr D’s income is $900 a fortnight from the Carer’s Allowance, and his mother receives the Age Pension which, aggregated, would not be sufficient to be able to pay those monthly repayments.  It emerged that, in fact, Mr D subsidies or pays the shortfall by using some of his savings from an inheritance which he said he received from his late father’s estate some years ago, and the balance on that inheritance at the present time is in the vicinity of $200 000.  Mr D also obviously lives with the children’s mother, Ms Dickens, and he said Ms Dickens also makes contributions to their living costs.  I accept Mr D’s assertions about his financial circumstances for the purposes of these proceedings.

11. So far as the conduct of these proceedings is concerned, there are various matters which are relevant.  Firstly, on 28 January 2014 there was an argument put on behalf of the applicant, Mr D, that the undertaking which Mr Dickens was saying was that which imposed the duties on Mr D was not capable of enforcement, and quite some time was spent on the first return day, 28 January 2014, hearing argument about that matter.  It is the case that Mr D had retained a Ms Sproston of counsel to make that argument, which was ultimately found by me to be unsuccessful.  In any event, on that occasion, after hearing argument about that matter, I ordered that all the contravention and contempt applications be listed for hearing by me for one day on 20 May 2014. 

12. My recollection of what occurred on 20 May 2014 was that Mr D came with his solicitor, and also with his counsel, Mr Cook, and they waited the entirety of the day.  In fact, I noted that Mr D, his counsel, and instructing solicitor, had waited the whole of 20 May 2014 for the father to complete his contravention proceedings against the mother.  My recollection of that day was that Mr Dickens was very slow in his cross-examination of the mother.  It is true that he was successful with one count having been proved against the mother on that occasion. 

13. But the significance so far as the immediate proceedings are concerned is the fact that Mr D, his solicitor, and his counsel, had to wait for virtually the entirety of the day and the application against Mr D was not able to be dealt with in those circumstances.  Mr Dickens says in respect of that aspect of the matter, that, “Well, they should have known”,  somehow Mr Kertesz should have known that the application against Mr Dickens would consume the day, and he could have gone away and been available at the end of a telephone.  I suppose, theoretically, that might be the case.  But the reality was that Mr D had a serious application pending against him.  It had been adjourned to that day.  There was nothing to indicate that he would not need to be ready on that occasion.  In fact, he was ready, not only with his instructing solicitor, but also with Mr Cook of counsel as well. 

14. In my view, there was nothing unreasonable about the actions of Mr D and his lawyers on that occasion.  In my view, these were entirely appropriate in the circumstances which presented on that occasion.  But, as it turns out, the costs of Mr D retaining his lawyers on that occasion were thrown away because they could not get on because of the application that was being heard against Ms Dickens on that occasion.  So the proceedings went over to 4 September 2014. 

15. On 4 September 2014 there were three alleged breaches against Mr D of his undertaking.  I orally informed him on that occasion of each of the alleged breaches.  In respect of each of those matters I recorded a denial.  Then the matter proceeded in Mr Dickens’ case.  I found that there was a prima facie case in respect of each of those alleged breaches.  To have arrived at that point consumed the entirety of 4 September 2014.  Having made those findings, I adjourned those matters to 27 January 2015 to enable Mr D to present a case of reasonable excuse and to complete the proceedings. 

16. It is true that on 4 September 2014, Mr Dickens indicated that on the next occasion, that is 27 January 2015, not only did he propose to have the Court complete the hearing of the three part-heard alleged breaches, but he also wished to press another application which he had filed.  This was a contempt application about which Mr Dickens has endeavoured to address me, at least partially, today.  But, in any event, in circumstances where Mr Dickens withdrew the part-heard matters, that is, the three outstanding counts the subject of the application for contravention filed on 15 October 2013, I did not hear those matters.  Rather, I gave Mr Dickens leave to withdraw them.  But this has had the consequence that Mr D has come today and has had to appear in court today, no doubt prepared and ready for the continuation of the hearing of those part-heard matters.  Clearly he has incurred costs in relation to those matters.  So he has incurred costs on 28 January, 20 May, 4 September and today in respect of that withdrawn application.

17. So far as conduct is concerned, Mr Dickens says that the Court ought to take into account that the argument put for Mr D on 28 January 2014 was, ultimately, unsuccessful.  As I have indicated, I take that into account. 

18. The next relevant matter in s 117(2A) is whether any party in the proceedings has been wholly unsuccessful in the proceedings. It must be the case that Mr Dickens must be regarded as having been wholly unsuccessful in the proceedings because he withdrew his application.

19. In my view, this is a matter where a costs order ought to be made, as was submitted by Mr Kertesz.  A costs order can be made, notwithstanding that a party does not appear to have the means to be able to comply with a costs order. 

20. I have indicated what I regard the financial circumstances of Mr Dickens to be, these being very modest.  However, in my view, the circumstances of this case are such that it is appropriate to make a costs order, particularly bearing in mind that Mr Dickens must be regarded as having been unsuccessful in the proceedings.  I am not aware of any evidence to indicate that at any occasion prior to today he indicated to Mr D that he would not be proceeding with the applications.  In fact, it seems from what has transpired today, that Mr Dickens would have preferred to put the three part-heard complaints on hold, as it were, to await some other occasion.  This is because he urged the Court to hear a contempt application, a different application from those matters.  Accordingly, it is clearly the case that Mr Dickens’ decision not to press the three outstanding matters listed for today, was made today.  The consequence is that Mr D has come along with his lawyer.  An affidavit was prepared by them.  Clearly, a considerable amount of work has been undertaken in preparation for today which has now been lost as a consequence of the manner in which Mr Dickens has determined to run his case. 

21. As I have said, in all the circumstances, in my view, this is a matter where a costs order ought to be made.  I am not persuaded that it is appropriate in the circumstances of the challenge that was made on 28 January 2014, that Mr D ought to have his costs in respect of that because that application was unsuccessful.  I accept that he still had some costs in respect of that matter, but I do not propose to order costs in respect of that occasion. 

22. The application was for an order for indemnity costs.  In Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 at 256-7, Sheppard J said:

    The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. ...

    This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate Court of Appeal or of the High Court would be required to alter it. ...

    In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course. …

    … it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes(1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp);the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson(1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2)(1992) 27 NSWLR 721 at 724(Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). …

23. The circumstances of the present matter differ from those above matters and bearing in mind relevant matters in totality, I am not persuaded that it is appropriate to make an order for Mr Dickens to pay Mr D’s costs on an indemnity basis. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 27 January 2015.

Associate:     

Date:              13 April 2015