Donnan and Platt

[2014] FCCA 2638

FEDERAL CIRCUIT COURT OF AUSTRALIA

DONNAN & PLATT [2014] FCCA 2638

Catchwords:
FAMILY LAW – Parenting – application for adjournment – costs.

Legislation:  

Family Law Act 1975, ss.60CA, 117
Federal Circuit Court Rules 2001, schedule 1

Allesch v Maunz (2000) 173 ALR 648
Haset Sali v SPC Ltd [1993] HCA 47
Aon Risk Services and ANU [2009] HCA 27
Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812
Bennett & Bennett (1991) FLC 92-191
Tate & Tate [2000] FamCA 1040
Prantage & Prantage [2013] FamCAFC 105

Applicant: MR DONNAN

Respondent: MS PLATT

File Number: PAC 280 of 2014

Judgment of: Judge Harman

Hearing date: 7 October 2014

Date of Last Submission: 7 October 2014

Delivered at: Parramatta

Delivered on: 7 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Lucas

Solicitors for the Applicant: Gen Law Pty Ltd

No appearance by the Respondent

Solicitors for the Independent Children’s Lawyer : Ms Hafey of Legal Aid NSW Parramatta Family Law

ORDERS

1. Leave is granted to the solicitor for the Respondent to withdraw from the matter.

2. Vacate the listing of these proceedings today.

3. Adjourn the proceedings for further hearing to 9.30am, 17 November 2014.

4. The Respondent, Ms Platt now known as Ms Platt shall attend in person before this Court at 9.30am on 17 November 2014 whether legally represented or not.

5. In the event that Ms Platt should fail to appear before the Court at 9.30am 17 November 2014 then a warrant may and in all probability will issue for her arrest, to bring her before the Court and to enable the proceedings to be concluded.

6. The Respondent, Ms Platt shall pay the costs of the father thrown away with respect to today’s listing, such costs assessed in the sum of $10,000 (including GST) and to be paid by Ms Platt no later than close of business 14 November 2014.  

7. The Respondent, Ms Platt shall pay the costs of the Independent Children’s Lawyer thrown away with respect to today’s appearance assessed in the sum of $1,994 together with a contribution to the costs of the Independent Children’s Lawyer to date assessed in the sum of $1,650 ($3,644 in total), such costs to be paid no later than close of business 14 November 2014. 

8. The solicitors for the Applicant father shall notify the Respondent mother of the orders made today by forwarding a sealed copy of same to her by ordinary pre-paid post to such address or addresses as are held or can be ascertained for her, including but not limited to a copy of the orders being forwarded to the Respondent both care of her work address, (employer omitted) and by correspondence forwarded to the (employer omitted), enclosing a sealed addressed envelope, addressed to the Respondent and requesting that the principal pass that correspondence to the Respondent, such notification to be proven on the next court event by Affidavit and in the event that the Respondent should fail to appear and in addition by a copy of the orders being forwarded to the Central West Contact Service both for their own records and with a request to that service to provide a copy of same to the Respondent by such means or via such address as they may hold for her.

IT IS NOTED that publication of this judgment under the pseudonym Donnan & Platt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT PARRAMATTA

PAC 280 of 2014

MR DONNAN

Applicant

And

MS PLATT

Respondent

REASONS FOR JUDGMENT

1. These are proceedings with respect to parenting arrangements for one child, X born (omitted) 2011, thus three years of age. 

2. The parties to the proceedings are X’s parents, her father, Mr Donnan who is the Applicant, and her mother, Ms Platt, now known as Platt, who is the Respondent. 

3. The proceedings were listed today for trial and final determination of the parenting controversy between the parents. 

4. Property adjustment orders were made on a final basis and by consent on 7 July 2014. In addition to making consent orders on 7 July 2014 today’s listing was fixed.

Due process

1. The mother does not appear today. She has, to date, been legally represented in the proceedings.  Her counsel appeared earlier today and sought the Court’s leave to withdraw. Indeed, correspondence had been forwarded by the mother’s attorneys to the Registry by email on the last business day prior to the scheduled hearing, raising a number of matters regarding their difficulty in obtaining instructions from the mother.  Those issues are not specifically considered, nor should they be before the Court, being as they are an implied if not express waiver of legal professional privilege and presumably, in light of the allegation of difficulty in obtaining instructions without the authority of the person authorised to waive such privilege, being the mother.

2. In any event, the mother does not appear today and her counsel has been granted leave to withdraw and has in fact withdrawn. 

3. When the matter was called on for hearing, the father appeared and is represented by abundantly capable counsel. The father seeks to press his application for relief.  The father seeks orders on a graduated basis to enable and permit him to spend time with young X and to thereby develop a relationship with her and maintain a meaningful involvement with her.

4. At present, the father’s time with X is regulated by interim orders made by consent on 28 April 2014. Those orders provide for time to occur between X and her father for a period of up to four hours each weekend subject to the availability of the Central West Contact Service to supervise that time.  The basis of supervision is not relevant for present purposes nor is it readily apparent from the material, save and except that the Respondent raises allegations of family violence, although, she is not present to prosecute those allegations today.

5. The orders made on 28 April 2014 also provide that the father is to meet the cost of that supervision, such as to enable the parties to, as it were, “jump the queue” and be able to engage that service on a privately funded rather than subsidised basis. That is a significant financial cost to the father. 

6. As indicated, the mother does not appear today and her legal representatives have withdrawn. 

7. The proceedings have been stood in the list for some time to enable contact to be made with the mother.

8. The father’s solicitors have been successful in making contact with the mother. She is apparently employed as a (occupation omitted) at the (employer omitted) and she has suggested to the father’s attorneys that:

   a)She does not propose to attend Court today;

   b)She was unaware of the listing and believed that the proceedings were listed on 22 October 2014. The proceedings have never been listed on that date, although the Independent Children’s Lawyer fairly reminds the Court that the date of 22 October 2014 had been offered but rejected. It is remarkable that her attorney attended on the correct listing date if the Respondent genuinely believed the listed hearing to be other than today.

9. The matter was not and has never been fixed for 22 October 2014 as the Independent Children’s Lawyer was not available and the participation of the Independent Children’s Lawyer is most assuredly desired.  The matter was and has always been fixed for hearing today 7 October 2014. 

10. Directions have been made for the filing of trial material by the parties.  The father was to file and serve by 22 August 2014.  He has done so.  The Respondent was to file and serve by 20 September 2014.  She has filed nothing.

11. The matter has been listed expeditiously and in the current context of delays due to a withdrawal of resources from this Registry, in a time frame that is somewhat out of step with that ordinarily experienced by litigants. That opportunity for expeditious hearing is now somewhat lost. 

12. The means of addressing the matter today are, in essence, twofold.  Firstly, to proceed with the matter on an undefended basis and absent the Respondent, whom I am satisfied has been afforded due process.  As was remarked by Kirby J in Allesch v Maunz (2000) 173 ALR 648:

    The requirement of due process is to afford to a party the opportunity to be heard, not an opportunity to be heard at a time of their choosing.

13. It would seem that Ms Platt has determined that she simply will not attend or participate today. That has been signalled not only by her non-attendance but her failure to comply with any order as to the filing of material. 

14. It is also complained by Mr Donnan that Ms Platt has more recently ceased in her attendance or, more fairly, as it would seem from the submissions of the Independent Children’s Lawyer, has never engaged appropriately or consistently with the provision of time through the supervised contact service.

15. The second option available is to adjourn the proceedings to enable a further opportunity for Ms Platt to participate.  If that were the only basis for adjournment, I make clear that the matter would proceed on an undefended basis. The Court’s resources are such that it cannot afford to extend to litigants repeated opportunities to participate when they desire and when they have already had more than abundant opportunity. 

16. The fact that Ms Platt has failed to file material or appear today would ordinarily satisfy me that the matter can and should proceed to a final and undefended conclusion.

17. When the matter was first called this morning, the Independent Children’s Lawyer appropriately apprehended difficulties which might arise with the matter proceeding to a final and undefended basis.  Whilst Ms Platt does not attend to agitate her position or to resist that advanced by Mr Donnan, there are significant issues raised in the proceedings, particularly in relation to family violence. The issues extend well and truly beyond those allegations but they are profoundly significant allegations, family violence being, as it is, central to all that is done by the Court.

18. Prior to instituting proceedings, parties are required to attempt to attend family dispute resolution and to make genuine effort to seek to resolve issues.  In this case, a certificate was issued by a Family Dispute Resolution Practitioner indicating that family dispute resolution has been assessed as inappropriate. There is no evidence before the Court as to that which passed or which was relied upon as regards that assessment. However, it can be inferred from that which is raised in the proceedings that family violence may well have had some role to play.

19. In any event, the issues of family violence that are raised are such that the Independent Children’s Lawyer appropriately and in a full and proper discharge of their office, desires to canvass and explore those issues in cross-examination. The position could thus potentially be reached whereby the Court is satisfied that one or other of the following are necessary:

    a)The adjournment of the proceedings on a part heard basis to enable the mother’s participation or further inquiry to be made;

    b)The conclusion of the matter but with orders substantially different to those sought by the father and without him then being afforded any full or proper opportunity to respond to the mother’s evidence;  or

    c)The Court being of the view, having heard evidence, that the trial requires abortion and adjournment to enable the mother to appear.

20. The first of the above courses is particularly problematic as it would involve the matter proceeding in the mother’s absence and the mother then being invited to rejoin the proceedings.  I am not satisfied that this would be appropriate on any level, including but not limited to due process being afforded to each of the parties or an appropriate use of the Court and other public resources. 

21. The relief sought by the father is discretionary. The Court cannot simply enter default judgment but must hear and preferably test evidence to be satisfied that the exercise of discretion as sought or at all is appropriate.

22. I am satisfied, as is urged by the Independent Children’s Lawyer , that for the matter to be properly and fully concluded, satisfactorily and treating with meaning the child’s best interests as the paramount consideration, as section 60CA of the Family Law Act 1975 requires, that further attempts must be made to have the mother participate.

23. The mother, through her indications both to the father’s attorneys and the Court, through the correspondence and submissions of her former attorneys, would appear somewhat resistant to that participation.  However, her participation is required and if need be, will be secured through the issue of a warrant for her arrest to bring her before the Court other than voluntarily if that is what is required.  That is not to be heavy handed. I am conscious that it is a serious step to invoke the Court’s coercive powers in that fashion. However, the child’s best interests require a conclusion to these proceedings, not just to enable her interests to be fully and properly addressed, but to ensure that the proceedings are brought to an appropriate conclusion and as soon as practicable.

24. In those circumstances the adjournment will occur. That gives rise, however, to an issue with respect to costs. 

25. The father seeks his costs thrown away by the mother’s non-attendance.  That term is, in this context, used advisedly. 

26. The Independent Children’s Lawyer also seeks costs on an interim or interlocutory basis, relating both to an initial contribution for costs as sought from the parties and each of them, as well as the costs thrown away with respect to today’s appearance.

27. There is a cost to these parties and in particular, the father and perhaps even more importantly, this child and her best interests which cannot be compensated by costs. 

28. These proceedings were expeditiously listed for trial.  A hearing date was allocated within three months of the request for listing. Since the hearing date was allocated a number of changes have occurred within the Court and with the consequence that hearing dates on a final basis will now be delayed by some months and in reality, to at least mid if not late 2015.  It may be possible for time to be made available earlier but, if so, that will be at a cost to other litigants who will be displaced.

29. The very matters addressed and spoken to by the plurality of the high court in authorities, such as Haset Sali v SPC Ltd [1993] HCA 47 and Aon Risk Services and ANU [2009] HCA 27 are to the forefront in this case. Not only the public purse but these parties and, most importantly, this child’s best interests will be prejudiced to some extent by the adjournment. That is brought about through the mother. If disadvantage is occasioned to X then it is the mother who has occasioned such disadvantage to X.

30. The above costs cannot be met through any financial recompense.  However, the financial cost to the parties and the Independent Children’s Lawyer can be met through an order for costs. 

31. Costs are to be addressed by reference to section 117 of the Act. Subsection (1) creates that which is often referred to as the general rule, being that:

    Each party to proceedings under the Act shall meet his or her own costs.

32. That “general rule” is subject to the discretion reserved by subsection (2) and subject to meeting the dual test of establishing both a justifying circumstances and justice and equity an order might be made (see Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812).

33. The Court must consider the non-exhaustive list of considerations in subsection (2A). 

34. In dealing with the issue of costs as between the father and mother, the provisions of subsections (1) - (2A) inclusive address the issue. 

35. As regards the application for costs by the Independent Children’s Lawyer, subsections (3), (4) and (5) are also relevant.

36. By subsection (4), the Court is precluded from making an order for costs in favour of an Independent Children’s Lawyer  against a party if either:

    (a) a party has received legal aid.

37. There is nothing in the evidence to suggest that the mother has ever received aid and indeed, the fact that she is employed on a full time basis as a (occupation omitted) and that the parties were, until the allocation of hearing dates, engaged also in property adjustment proceedings would suggest that it would not be so. 

38. Further, the Court must not order costs in favour of an Independent Children’s Lawyer  as against a party if:

    (b) the Court considers that a party would suffer financial hardship.

39. That issue is addressed through the terms of the property adjustment orders made between the parties, to which I will turn shortly, but which satisfies me that to the extent that there would be hardship, it is not of such magnitude as would obviate against the Court awarding costs in favour of either the father or Independent Children’s Lawyer.

40. The Court must disregard the public funding of the Legal Aid Commission in dealing with issues of costs. 

41. It is also to be noted that the general rule in subsection (1) does not apply to or bind the Independent Children’s Lawyer, they not being a party to the proceedings (see Bennett & Bennett (1991) FLC 92-191).

42. In dealing with the issue of costs and, in particular, a justifying circumstance, I am satisfied that the mother’s non-attendance and non-participation in the final hearing of these proceedings is, by and of itself, a justifying circumstance. Such contumelious disregard for the consequences of her non-instruction of her attorneys, non-preparation of her case and non-attendance as regards the Court, the Independent Children’s Lawyer, the Legal Aid Commission, the father and ultimately the child’s best interests is staggering.

43. I have described the mother’s non-attendance and non-participation in those terms deliberately, as she has failed to do anything required of her to participate in this hearing.  She has not only failed to attend, she has failed to file any evidence which could be relied upon in the proceedings, and notwithstanding that she has raised significant issues and allegations. Those allegations could readily be disregarded as the mother is not here to press those allegations and there is no agitation for their consideration. However, as the proceedings relate to the determination of a child’s best interests I am satisfied that they should not be so disregarded.

44. That position is spoken to by the Independent Children’s Lawyer in her entirely appropriate discharge of her office in drawing those matters to the Court’s attention and seeking, in due course, to cross-examine with respect to them as well as to tender evidence. To fail to do so might be negligent and ignorant of protection of the child’s best interests.  That is not something which could or would ever be described of the Independent Children’s Lawyer. 

45. I am satisfied, as would be apparent from the determination that to conclude the proceedings appropriately the mother’s participation is necessary, that her failure, bordering upon if not in fact contumelious disregard of the Court’s authority, let alone the child’s best interests, is an additional justifying circumstance.

46. In turning then to the factors which must be considered in subsection (2)(a), and as to which reliance is placed in both the above determination of a justifying circumstance and justice and equity, I propose to deal with each individually. 

Financial circumstances of the parties

1. Little is known of the financial circumstances of the parties, save that:

   a)Each party has filed a statement of financial circumstances; and

   b)The parties have recently – as recently as 7 July 2014 – entered into final property adjustment orders. 

2. The mother’s Financial Statement filed 7 July 2014 (filed on the morning of the Conciliation Conference notwithstanding an order made 28 April 2014 that “the wife file and serve a Financial Statement within 7 days of today’s date and not otherwise”) deposed to the mother receiving an income of $1300 gross per week, and from which she meets expenditure as alleged within that document of $961 per week. 

1. By the mother’s sworn evidence she has an excess of income over expenditure of some $339 per week.  The mother deposes to payment of income tax and rent, but does not allege any other expenses.  Clearly, there would be other expenses, but she has failed to place them before the Court in any meaningful way. 

2. Importantly, the property adjustment orders which the parties entered into on 7 July provided for the distribution of the proceeds of sale of a property previously owned by the parties. From those proceeds, the wife was to receive a sum of $150,000.  Accordingly, and absent any evidence to suggest the commitment of those funds to the purchase of any other property or having dealt with those funds in any other fashion, the mother would appear to have substantial funds available to her.

3. The father’s financial circumstances are similarly set out in a Financial Statement filed by him in these proceedings. That statement would not suggest that the father is in any particularly strong financial position.  He deposes to receiving an income as a concreter of $673 gross per week, and meeting expenditure of $659 per week, thus he has a very modest excess of income over expenditure. The father deposes to payment of child support as assessed and, as noted above, he meets the private funding of supervision of his time.

4. The father has funds which he was to receive by way of property adjustment orders made 7 July 2014, being $130,317.85. 

Whether any party is in receipt of legal aid

1. Neither is.

The conduct of the parties with respect to the proceedings

1. Whilst a number of illustrative examples are given within the subsection, the Court is not confined to them. They are illustrative.  In this case it is alleged that the mother has failed to comply with the interim order for the child’s time with the father, and importantly, has failed to file any evidence in these proceedings or take any active step to prosecute her resistance to that which is sought by the father or to present evidence before the Court supporting any orders sought by her.

2. The allegation as to non-compliance with orders for the filing of material is borne out by the Court file and Casetrack.  On the basis of the mother’s non-compliance with orders for trial preparation there may have been difficulty or at least greater expense in the matter proceeding even if the mother had attended and properly instructed her counsel.

3. The allegations as to the mother’s non-compliance with interim parenting orders is suggested to be corroborated and supported by documentation produced to the Court on subpoena from the supervising service.  That material has been inspected by the father’s attorneys and the Independent Children’s Lawyer, but not yet tendered.  However, I accept the Independent Children’s Lawyer’s submission that it corroborates the allegation. 

4. In the proceedings, the father seeks and has always sought orders which would see him spending time with the child on an unsupervised basis, and building up to a substantial time arrangement, if not an equal time arrangement. 

5. The mother for her part proposes, on a final basis, that she have sole parental responsibility for X, and that the child spend time with the father on a continuing basis through a contact centre, notwithstanding the difficulties with that position which arise from a myriad of high court and full court authority.

6. The mother has not taken any active step to participate in the proceedings since the Conciliation Conference.  She has not conducted her case in a diligent fashion at any time during the time the matter has been before the Court. 

7. Whilst the mother had joined issues with respect to property adjustment, by her Response filed 11 March 2014, she did not file with that document that which was required of her, including a Financial Statement.

8. Delay in the filing of material by the mother caused at least one prior adjournment of the proceedings. The Federal Circuit Court Rules2001 provide a period of 14 days from service to file a Response and necessary supporting material.  The mother filed a part of the material required of her some 6 weeks after service.

9. The above are not matters of great consequence.  More important is her failure to participate in the proceedings today or at any time since the resolution of the financial aspect of the proceedings.  One would be forgiven for inferring that the financial aspect of the matter is of more concern to the mother than the determination of this child’s welfare.

10. Failure to file material was the subject of comment by the full court in Tate & Tate [2000] FamCA 1040 at paragraphs 74-75 and 101 as follows:

    …interlocutory orders made by the trial Judge by way of case management, were no less orders of the Court.  There were entitled to full and punctilious obedience.  This Court has a duty to order its business with justice according to law.  The Rules of Court are there to assist in the fair and timely preparation of matters for expeditious trial…..Against that background the trial Judge’s specific orders achieved an even greater potency.  They did not have to be expressed as “unless” or “guillotine” orders: they were interlocutory orders of a judge of a superior court of record [the Federal Circuit Court is a Court of Record but a first instance trial Court rather than Superior Court] and to be obeyed as such according to their terms, which included specific times for performance. 

    75. It is not for litigants, appearing in person or otherwise, to pick and choose which orders they will or will not obey, or when they may condescend to comply with them.  Such an attitude, amply evidenced in this matter, if adopted, brings its own nemesis.  That is not only because it is contemptuous of the Court’s orders.  It is also because it works injustice to the parties who do comply, and unfairness to that myriad of litigants waiting to have their matters despatched as soon as the Court can hear them.  The luxury of procrastination – let alone deliberate disobedience – is a luxury of the past if it ever existed…

    101. Problems of delay in the attainment of justice have long plagued the Courts.  Well known remedies were even sought by way of Magna Carta in the thirteenth century.  The aphorism “Justice delayed is Justice denied” is all too frequently manifestly true in this jurisdiction.  Delays in cases such as this are often not fully compensable in purely money terms. 

11. The full court’s comments are apt to the circumstances of this case. The wife’s failure to comply with orders for trial preparation (especially combined with her failure to properly instruct her attorneys or appear) has created the inability to bring the matter to a conclusion.

12. The mother’s behaviour in that regard is, at best, reprehensible and most assuredly mischievous and counterproductive to not only the interests of justice, as regards the parties, but the interests of the child, as there will now be further significant delay before there can be a final determination.

Whether the proceedings are necessitated by the failure of a party to comply with an order

1. This is relevant.  The proceedings cannot be concluded today due to the mother’s failure to comply with trial directions or appear. The failure to comply with those orders is the sole basis for adjournment of the proceedings.

Whether any party has been wholly unsuccessful

1. That is a difficult factor to weight into this equation. To the extent that the mother seeks delay, she has been successful.  However, she should not profit from that delay or that agenda.

Whether any party has made an offer

1. Is not relevant.

Such other matters as the Court considers relevant

1. As I am satisfied that the matter cannot be appropriately brought to a conclusion without the mother’s attendance and participation, an adjournment is irresistible.

2. It is curious that the mother, having been contacted and advised that the proceedings are before the Court today, has determined that her duties as a (occupation omitted) – which I do not cavil with for one moment as being profoundly significant and important to the community, and the children whose care she is responsible for – is of more importance than her participation in these proceedings relating, as they do, to the welfare of her own child.  And also, in the face of the consequences, which I have no doubt she has been advised would follow, i.e., the potential for the issue of a warrant for her arrest, if not today, on the adjourned occasion, and/or an order for costs she has still refused to attend.

Quantum of costs

1. The Independent Children’s Lawyer seeks an order for payment of the initial contribution which has been sought by them from the mother being $1650 (the father has already paid that amount) together with the costs thrown away with respect to today’s hearing being the daily hearing fee per schedule 1 of the Federal Circuit Court Rules.  Those costs would total $3,644. 

2. The father seeks costs thrown away in the sum of $10,000, representing preparation for today’s hearing and primarily counsel’s preparation and conferences, counsel’s attendance today, together with the instructing solicitor, and the other costs incurred which, to the extent of quantifying financial aspects thereof, would include but not be limited to the payment of a hearing fee by the father of $590. 

3. Those costs, by reference to schedule 1 of the Federal Circuit Court Rules comprise:

   a)Item 6: Preparation for one day hearing $4250;

   b)Attendance for hearing by reference to items 12 and 13, and apportioning an advocacy loading, would total $2,991;

   c)Hearing fee $590.

4. Those items alone total $7831. 

5. There are also costs no doubt incurred with respect to the issue of subpoena and attendance to inspect material produced on subpoena (although inspection would be properly included in item 6), photocopying and the like. 

6. Accordingly, without specifically quantifying those amounts, their inclusion would begin to move towards the amount which is sought $10,000. 

7. Whilst there is real clarity following the full court’s decision in Prantage & Prantage [2013] FamCAFC 105 as to the appropriate circumstances in which indemnity costs might be ordered, it is not clearly specified – nor have I sought to have it specified – whether the father’s costs are sought on that basis, or on a party-party basis by reference to schedule 1 of the Federal Circuit Court Rules. 

8. I have addressed the quantum sought by the father and the matters which might apply thereto on the basis that I am satisfied that there is little if any difference between the amount sought and that which could be reasonably produced by reference to the schedule. 

9. Further, I note that schedule 1 of the Federal Circuit Court Rules, to the extent that Part 21 of the Federal Circuit Court Rules requires that the schedule and the amounts fixed thereby be taken into account, is not a prescriptive scale. It is an indicative event based scale and the Court is directed to consider it rather than be bound by it. One can depart from the schedule by increasing or decreasing amounts. 

10. Schedule 1 of the Federal Circuit Court Rules is not intended to regulate affairs between practitioners and their clients, nor between parties to the extent that a party-party costs order is made. It is a schedule intended to give a clear indication to parties of that which might reasonably be anticipated in the event that an order for costs were made. 

11. I raised with counsel for the father as to whether an order for costs which included or made provision for preparation was appropriate, in light of the fact that the matter will be adjourned for a further date for hearing once the mother’s participation has been secured.  Submissions were put which I have considered and on the basis that work will inevitably require duplication, especially conferences, and thus the majority of work undertaken may require repetition.

12. As a consequence of changes in judicial staffing and resources within the Registry, hearing dates will now be some months hence and possibly close to a year away. Accordingly, I am satisfied that preparation and provision therefore should be included within any order for costs, as there will be significant duplication, if not a complete reworking of preparation, prior to a hearing if that hearing is now to be delayed by quite some and, in all probability, many months. 

13. I am satisfied on a party-party basis that the quantum of costs as sought by the father’s attorneys is appropriate and justifiable. It is reflective of that which would be reasonable. That it may reflect that in fact incurred but that is purely coincidental as regards the quantum assessed by me. 

14. I am satisfied the order can and should be made on a party-party basis, and thus avoiding the need for further consideration of the matters set out in Prantage & Prantage [2013] and the authorities referred to therein, and with lesser controversy. The costs sought are modest and within the range of that which might be expected across the profession.

15. In those circumstances, I am satisfied also that the mother should not only pay such costs as are incurred by the father, but should pay them prior to – although not expressed as a condition precedent for – her ongoing participation in the proceedings and appearance on the adjourned return date, which will be a little over five weeks hence.

16. As the mother received substantial funds by way of property adjustment only 3 months ago she is or should be in a position to meet such costs, whether from funds held by her or through borrowings secured thereupon.

17. In relation to the Independent Children’s Lawyer, I am satisfied that an order for costs thrown away with respect to today is appropriate, together with an interlocutory order for costs with respect to that which has been sought by the Independent Children’s Lawyer  with respect to contribution to costs to date. These parties are clearly in a position to be able to fund the costs of the Independent Children’s Lawyer and the appointment arises primarily if not solely as a consequence of the allegations raised by the mother by which she now does not prosecute by preparation or appearance.

18. But for the issues that were raised by the mother – and I make clear that they were raised at first instance through a child dispute conference memorandum, rather than by material filed by her, as at the first return date of the proceedings the Respondent had not filed material, notwithstanding that a period well in excess of 14 days following the date of service had passed. The mother has raised serious and significant allegations, and those allegations were, by and large, the basis upon which both the child dispute conference was ordered and appointment of an Independent Children’s Lawyer was considered necessary. In those circumstances, it is entirely mischievous of the Respondent to raise matters of such magnitude and to then fail to take any active step to present evidence, or to prosecute a position based upon those allegations. 

19. I am satisfied that an interlocutory order, as section 117(3) of the Act makes clear, the Court can entertain is also appropriate in addition to the Independent Children’s Lawyer’s costs of today. Further, with respect to that issue, I note that the father has attended to payment of the contribution sought of the parties, and is in a position to meet further contribution as has been sought of him. Those issues, again, weigh heavily as regards both due process being afforded to the parties, and each of them, it not being something afforded solely to the Respondent, but in equal measure to the Applicant and, as regards justice and equity, would require that such an order be made.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  17 November 2014