Dosiak & Dosiak

[2009] FamCA 130

FAMILY COURT OF AUSTRALIA

DOSIAK & DOSIAK [2009] FamCA 130

FAMILY LAW – COSTS – application by mother seeking order for costs against the grandmother – where proceedings were brought by the grandparents in 2006 seeking time with their granddaughter – where a Family Assessment Report and the Independent Children’s Lawyer did not support an order for the grandparents to spend time with child – where the child did not wish to spend time with or communicate with the grandmother – where the grandmother discontinued proceedings in 2008 – consideration of s 117(2A) – not satisfied there are circumstances justifying an order for costs – application dismissed

FAMILY LAW – COSTS – whether the mother should pay the grandmother’s costs in relation to the mother’s costs application – where mother wholly unsuccessful – consideration of parties’ respective financial circumstances – not satisfied there are circumstances justifying an order for costs – application dismissed

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Dosiak

RESPONDENT: Mrs Dosiak

FILE NUMBER: ADF 356 of 2003

DATE DELIVERED: 17 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: Ms Basheer

SOLICITOR FOR THE RESPONDENT: Johnston Withers

Orders

1. The Final Orders Application in a Case filed by the Paternal Grandmother on the 18 September 2006 is dismissed.

1. The Application in a Case filed by the mother on the 9 July 2008 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 356 of 2003

MS DOSIAK

Applicant

And

MRS DOSIAK

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application by the mother, seeking an order against the grandmother for costs concerning the proceedings which were brought by the grandparents, who were then seeking to have some time spent with their grand‑daughter.

2. I have before me today Ms Basheer, who appears as counsel for the respondent grandmother, and the mother who appears in person with the assistance of an interpreter.

3. The proceedings, originally commenced in the Family Court, were commenced by the grandmother and grandfather in September 2006.  At that time it appears the mother was represented and was in receipt of legal aid.

4. The proceedings were heard on several occasions by Judicial Registrar Forbes, and on another occasion by Registrar McMahon, and listed before me today for final determination.

5. The mother has referred me to the applications for costs and the material in her affidavits, and in particular the material which appears in document 93 (which is the affidavit of the mother sworn on 11 November 2008 and filed on 20 November 2008) to which is annexed a large number of documents.

6. The proceedings before the Court concerning the grandparents' request to spend time with their grand‑daughter resulted in reports being prepared by Mr P, a family consultant, and the involvement of an Independent Children’s Lawyer.  Both the report of Mr P and the Independent Children’s Lawyer did not support an order being made in relation to the grandparents spending time with their grand-daughter but specifically said that the grand-daughter did not wish to spend time with or communicate with the grandmother.

7. It is not contested that the grandfather, who was one of the applicants in the proceedings, died of cancer (which had earlier been diagnosed).  His death took place in May 2008.  The grandmother filed a Notice of Discontinuance of her proceedings in June 2008.

8. Subsequently, the mother brought the application in a case seeking the costs of the proceedings, which she had incurred.  There are various figures put to the Court by the mother, together with documents representing invoices and particulars from her lawyers and the Legal Services Commission about the amount outstanding on the charge which the Legal Services Commission have to protect their claim for costs of representing the mother.

9. Section 117 of the Family Law Act specifically states that: "Subject to subsection (2)" - and other sections which are not relevant - "each party to proceedings under this Act shall bear his or her own costs." Subsection (2) provides that

   “If, in proceedings under this Act, the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just. ”

10. Section 117(2A) lists the matters to which the Court is required to have regard when considering what order if any should be made under subsection (2). The various decisions of this Court indicate that the relevant provisions of subsection (2A) must be taken into account and consideration given to those in each particular case. It is therefore necessary to go through those criteria.

11. Subsection (a) refers to the financial circumstances of each of the parties to the proceedings.  The information before the Court indicates that the grandmother is in receipt of an aged pension and has a limited income.  I accept, however, that she has a substantial asset by way of real estate in which she resides.  In contrast, the mother's financial circumstances are of a limited income support of the child and substantial debt in relation to previous property settlement proceedings with a former partner.

12. Subsection (b) (whether any party to the proceedings is in receipt of assistance by way of legal aid, and if so the terms of the grant of that assistance to the party).  That is relevant in this case because the mother was in receipt of legal aid, and one of the terms of the grant appears to have been that she was required to have a caveat registered over her real estate, to protect the costs claim.

13. Subsection (c) refers to the conduct of the parties to the proceedings, in particular compliance with what could be described as procedural orders.  The orders of the Court make it clear that the mother was directed to file and serve answering documents, and there were adjournments in relation to those matters pending the hearing of the matters before the grandmother discontinued.

14. Another factor that is relevant is whether any party to the proceedings has been wholly unsuccessful in the proceedings.  Of its very nature, the grandmother discontinued the proceedings and therefore has been unsuccessful, but I accept the submissions of Ms Basheer that in those circumstances there has been no decision as to the merits of the application brought by the grandmother.

15. Subsection (f) relates to whether there has been any offer in writing to the other parties to settle and the terms of such offer.  I am told there has not been any such offer.

16. Subsection (g) refers to “such other matters as the Court considers relevant”. 

17. In relation to the matters before the Court, the mother puts to the Court that the grandmother continued the proceedings notwithstanding the indications from the family consultant's report and the Independent Children’s Lawyer's comments about the wishes of the child. The wishes of a child are one of the factors the Court will take into account when making an order. I also take into account the fact that there have been amendments to the Family Law Act which emphasise and encourage, in circumstances where it is appropriate, for there to be an ongoing relationship between grandparents and grandchildren.

18. It is appropriate to consider this matter taking into account the material that was before the grandmother when she commenced her application; namely, the encouragement in the Act for consideration to be given to maintaining a relationship between grandchildren and their grandparents and the procedure adopted by the Court in obtaining the reports from Mr P and the subsequent discontinuance of the proceedings by the grandmother.

19. I have taken into account in particular that the grandmother discontinued the proceedings in June of 2008.  I also take into account the limited income of the grandmother and the costs which she has incurred in opposing the costs application brought by the mother.  In particular, I also take into account the circumstances surrounding the overall proceedings; namely, that they were proceedings in which the grandparents were seeking to spend time with their grand‑daughter. 

20. I am not satisfied, in the overall balance of the factors, and in particular taking into account the factors in section 117(2A), that there are circumstances that would justify the Court making an order for costs of the proceedings against the grandmother. I therefore decline to make that order.

21. I turn now to consider the question of whether the mother should pay the grandmother's costs in relation to the application. I do not accept, bearing in mind that the mother was unrepresented in parts of the proceedings, that the costs application should be dismissed on a technical or legal basis, but rather I have dismissed it weighing up the factors in section 117(2A).

22. To that extent the mother has been wholly unsuccessful in her application for costs.  However, again I take into account the financial circumstances of the parties.  Again, the mother has limited assets available to her in the sense that whilst she has assets she also has significant liabilities and responsibilities.  I also take into account that the grandmother has a substantial equity in the real estate which she owns and other assets, but has a significantly limited regular income. 

23. Weighing up all of those factors, and again taking into account the provisions of section 117, in particular s.117 subsections (1), (2) and (2A), I am not satisfied that there are circumstances which justify the Court in making an order for costs in favour of the grandmother against the mother, and I also dismiss that application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  26 February 2009