DUCKETT & ROBINSON (No.2)
[2015] FCCA 2277
•24 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUCKETT & ROBINSON (No.2) | [2015] FCCA 2277 |
| Catchwords: PRACTICE AND PROCEDURE – Application for leave to file out of time – dispensation with service – where respondent’s whereabouts unknown – where respondent believed to be remaining out of the jurisdiction. WORDS AND PHRASES – “independent children’s lawyer” – correct title is “independent children’s lawyer” even where there is only one child – title prescribed by Family Law Act 1975 (Cth), s.4. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 65Q, 65Y, 65Z, 67Q, 68L, 68LA, 117 Federal Circuit Court Rules 2001, rr.21.02, 21.15, 21.16 |
| Cases cited: Colgate Palmolive Co. v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248 De Roma & De Roma [2013] FamCA 566 Duckett & Robinson [2015] FCCA 997 Fennessy & Gregorian [2009] FamCAFC 44; (2009) FLC 93-399 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158; (2005) 33 Fam LR 123 Kohan & Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340 Munday & Bowman (1997) FLC 92-784 Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544 Stephens & Stephens & Anor(Enforcement) (Costs) [2010] FamCAFC 172 Wade & McPherson [2014] FCCA 1321 Yunghanns & Yunghanns [2000] FamCA 681; (2000) FLC 93-029 |
| Applicant: | MR DUCKETT |
| Respondent: | MS ROBINSON |
| File Number: | SYC 5776 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 8 July 2015 |
| Date of Last Submission: | 8 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guterres |
| Solicitors for the Applicant: | Derham Houston |
| Respondent: | No appearance |
| Counsel for the Independent Children's Lawyer: | Ms Falloon |
| Independent Children's Lawyer: | Peter Baker Solicitor |
ORDERS
The Applicant Father is granted leave to file his Application for an order for costs out of time.
The Independent Children’s Lawyer is granted leave to file his Application for an order for Costs out of time.
Service on the Respondent Mother of the Application in a Case filed by the Applicant and the Application in a Case filed by the Independent Children’s Lawyer and affidavits in support is dispensed with.
The Respondent is to pay the Applicant’s costs of the substantive proceedings fixed in the sum of $53,088.00.
The Respondent is to pay the Applicant’s costs of this Application in a Case fixed in the sum of $$3,242.00.
Not later than 6 October 2015 the Applicant is to pay to the Legal Aid Commission of New South Wales the sum of $6,188.60, being one half of the costs of independent legal representation for the child [X] less the amount of $1,650.00 previously paid by the Applicant on 7 March 2014.
Not later than 6 October 2015 the Respondent is to pay to the Legal Aid Commission of New South Wales the sum of $9,175.10 being:
(a)One half of the costs of independent representation for the child [X] in the sum of $6,188.60; and
(b)The costs of the Application in a Case filed by the Independent Children’s Lawyer in the sum of $2,986.50.
The Respondent is to pay the costs of the Independent Children’s Lawyer in respect of this Application in a Case fixed in the sum of $$1,265.00.
The Court certifies that it was appropriate to employ Counsel as an advocate in each case.
Within seven (7) days of the date of these Orders the Independent Children’s Lawyer is to provide a copy of these Orders by way of service on the Respondent:
(a)By email to [omitted]; and
(b)By post addressed to Ms Robinson, [address omitted].
IT IS NOTED that publication of this judgment under the pseudonym Duckett & Robinson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5776 of 2013
| MR DUCKETT |
Applicant
And
| MS ROBINSON |
Respondent
REASONS FOR JUDGMENT
Applications in a Case
Both the Applicant Father and the Independent Children’s Lawyer are seeking orders for costs in respect of parenting proceedings that were finalised on 9th April 2015.[1] The Respondent Mother has not appeared and it is believed that she is still out of Australia. The Mother departed Australia on a flight to Jakarta with the child on 8th April instead of attending the final hearing.
[1] Duckett & Robinson [2015] FCCA 997
On 9th April 2015 I made orders that:
a)the parties’ child [X], who was born on [omitted] 2011, was to live with the Father who was to have sole parental responsibility for the child;
b)a Recovery Order was to issue under s.67Q of the Family Law Act 1975 (Cth) for the recovery of the child and delivery to the Father; and
c)a warrant for the arrest of the Mother was to issue under s.65Q of the Family Law Act 1975.
Orders Sought
The Father, by his Application in a Case filed on 20th May 2015, seeks the following Orders:
1.The mother pay the costs itemised up to and including 9 April 2015 of the father on an indemnity basis.
2.The mother pay the costs of the father in bringing this application on an indemnity basis.
3. Leave be granted to file this application in a case out of time.
The Independent Children’s Lawyer filed an Application in a Case on 30th June 2015, in which he seeks the following Orders:
1.The Applicant Father pay the sum of $4,538.60 to the Legal Aid Fund in respect of the Independent Children’s Lawyer’s costs to 10 April 2015.
2.The Respondent Mother pay the sum of $6,188.60 to the Legal Aid Fund in respect of the Independent Children’s Lawyer’s costs to 10 April 2015.
3.The Respondent Mother pay the costs of the Independent Children’s lawyer in respect of this Application being the sum of $1,100 in respect of preparation and $165.00 per hour on hearing.
4.Service upon the Respondent Mother of this Application in a Case and the supporting Affidavit of Peter Baker is dispensed with.
5. Leave is granted to file this Application in a Case out of time.
6.That the Independent Children’s Lawyer’s Application for Costs to be heard with the Application for Costs of the Father filed 20 May 2015.
At the hearing, Counsel for the Independent Children’s Lawyer, Ms Falloon, submitted a Minute of Orders which supersedes the Orders sought in the Application in a Case. The orders now sought are:
1.Not later than 6 October 2015 the applicant father MR DUCKETT (‘the father’) shall pay to the Legal Aid Commission of New South Wales the sum of $6,188.60, being one half the costs of independent legal representation for the subject child [X], less any amount already paid by the father towards those costs.
2.Not later than 6 October 2015, the respondent mother MS ROBINSON shall pay to the Legal Aid Commission of New South Wales the sum of $9,105.10 being:
a. one half of the costs of independent representation of [X], in the sum of $6,188.60; and
b. the costs of the Application in a Case filed for the Independent Children’s Lawyer, being $2,986.50.
3.The Independent Child’s Lawyer[2] shall within 7 days provide a copy of these orders by way of service on MS ROBINSON:
a. by email to [omitted]; and
b. by post addressed to Ms Robinson, [omitted].
[2] sic
Evidence and Submissions
The Father relied on his affidavit of 13th May 2015.
The Independent Children’s Lawyer, Mr Peter Richard Baker, relied on his affidavit of 28th June 2015.
In his affidavit, the Father deposed that he had incurred costs and fees totalling $53,247.00 in pursuit of final orders, and he annexed copies of accounts from his solicitor and a schedule of amounts paid from his solicitor’s trust account.
At Annexure “B” to his affidavit the father provided copies of memoranda of costs and his disbursements from his solicitor from 3rd March 2014 to 1st May 2015 totalling $40,544.40.
At Annexure “C” to his affidavit the Father provided an account of the amounts paid from his solicitor’s trust account totalling $5,623.60. The amounts paid included Counsel’s fees of $3,300.00 and the initial contribution to the costs of the Independent Children’s Lawyer in the sum of $1,650.00.
The Father also deposed at paragraph [14] of his affidavit that he paid an amount of $6,600.00 directly to Dr R, the Court Expert, and an amount of $320.00 to a Dr F, making a total of $6,920.00.
With respect, I cannot see that the total of those sums amounts to $53,247.00. By my calculations, the total amount is only $53,088.00. As can be seen, the Father seeks a complete indemnity from the Mother for his costs and disbursements, based on her conduct of the entire matter, including her absconding from Australia with the child on the first day of the final hearing.
It was submitted by Mr Guterres of Counsel on behalf of the Father that:
a)there should be some “special or unusual feature in the case to justify the court in departing from the ordinary practice”, per Sheppard J in Colgate Palmolive Co. v Cussons Pty Ltd[3];
b)the circumstances justifying the departure from the ordinary rules relating to costs should be of an exceptional kind (Kohan & Kohan[4]; Yunghanns & Yunghanns[5];
c)the categories in which the discretion to award indemnity costs are not closed;
d)the degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis;
e)failure to comply with orders may not be sufficient to constitute extraordinary conduct to justify the making of an order for indemnity costs (Fennessy & Gregorian[6]);
f)conduct that might in some respects be described as “ethically and morally delinquent” would not necessarily be sufficient (Stephens & Stephens & Anor (Enforcement) (Costs)[7];
g)the “conduct of a party that is relevant to the issue of indemnity costs is the party’s conduct as a litigant”; and
h)whilst often intertwined, it is impermissible to conflate conduct as a parent with conduct as a litigant in making an order for indemnity costs (Prantage & Prantage[8]).
[3] (1993) 46FCR 225
[4] (1993) FLC 92-340
[5] (2000) FLC 93-029
[6] (2009) FLC 93-399
[7] [2010] FamCAFC 172
[8] (2013) FLC 93-544
Counsel for the Father also referred the Court to the decision of Holden CJ in Munday & Bowman[9]).
[9] (1997) FLC 92-784
Accordingly, it was submitted that:
a)The circumstances of this case justify not only a departure from the ordinary rule that each party should bear his or her own costs[10] but are sufficient to ground an order for costs on an indemnity basis;
b)The Father’s financial circumstances are described in the evidence whilst those of the Mother are not, but it can be inferred that she has some financial resources to have enabled her to abscond, although it is conceded that the order sought would impose financial hardship on her;
c)Neither party is legally aided;
d)The Mother’s conduct in removing the child from the country and therefore from the jurisdiction of the Court is the most critical factor, as the orders in the Father’s favour are entirely without effect and “the entire costs of the proceedings have been for naught”[11];
e)Whilst the proceedings were not initiated as a result of non-compliance with previous orders there has been a consistent failure by the Mother during the proceedings to comply with orders and directions of the Court;
f)The Mother has been wholly unsuccessful in the proceedings, to the extent that the Court has issued a warrant for her arrest;
g)There is no evidence of any relevant settlement offer; and
h)The Court should consider the likely future costs of the Father with respect to anticipated litigation regarding child support and costs associated with locating the child overseas.
[10] See Family Law Act 1975 (Cth), s.117(1)
[11] Applicant’s Case Outline 7.7.2015 at 18 (page 4)
In his affidavit of 28th June 2015, Mr Baker, the Independent Children’s Lawyer, deposed that:
a)he had advised the parties by letters dated 12th February 2014 that he was funded by Legal Aid NSW and they were required to reimburse Legal Aid for the entire costs incurred by Legal Aid as to one half each unless waived by Legal Aid;
b)on 7th March 2014 the Father paid to him a cheque for $1,650.00 as his initial contribution;
c)he was not aware that the Mother had made any contribution to the costs or had received a waiver;
d)after final Orders were made by this Court on 9th April 2015 he had been directed by Legal Aid to seek an Order that each party pay half of the total costs incurred to date and that, in addition, the mother was to pay the full costs incurred by Legal aid in respect of the Independent Children’s Lawyer’s Application for costs;
e)the total costs and disbursements incurred by Legal Aid for the Independent Children’s Lawyer to date amount to $12,377.20 being $8,910.00 in respect of costs and $3,467.20 in respect of disbursements, including Counsel’s fees;
f)the costs of the Application for Costs are estimated at $1,100.00 in respect of preparation and $165.00 for each hour of the hearing; and
g)dispensation of service was sought in respect of the mother as her whereabouts were unknown.
Counsel for the Independent Children’s Lawyer referred the Court to the decision of the Full Court of the Family Court in PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [12], which considered the effect of subsections 117(3) to (5) of the Family Law Act, referring to “proceedings in which a child representative has been appointed[13], and the decision of Watts J in De Roma & De Roma[14], where his Honour held that subsection 117(5) of the Family Law Act is a provision which protects the public purse and held that only the financial circumstances of each of the parties are matters of weight and the Independent Children’s Lawyer is to be treated as unfunded. His Honour followed the decision of the Full Court of the Family Court in LAC & TRF & LKL[15] and held that there is nothing to prevent any one factor in s.117(2A) of the Act being the sole foundation for an order for costs.
[12] [2005] FamCA 158; (2005) 33 Fam LR 109
[13] To use the terminology in force at the time
[14] [2013] FamCA 566
[15] Reported as PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL, (supra)
Issues
The issues to be decided are:
a)Whether leave should be granted to bring the Applications for costs out of time;
b)Whether service on the Mother should be dispensed with;
c)Whether the Mother should pay the Father’s costs of the substantive proceedings;
d)Whether the Mother should pay the Father’s costs of his Application for costs;
e)If so, whether those costs should be paid on an indemnity basis or on the usual party and party basis;
f)Whether the Father should pay one half of the costs of the Independent Children’s Lawyer;
g)If so, in what amount;
h)Whether the Mother should pay one half of the costs of the Independent Children’s lawyer in the substantive proceedings;
i)Whether the Mother should pay the costs of the Independent Children’s Lawyer in respect of this Application;
j)If so, in what amount.
First of all, Rule 21.02 provides that an application for an order for costs may be made:
a)at any stage in a proceeding; or
b)within 28 days after a final decree or order is made; or
c)within any further time allowed by the Court.
The Applications are both outside the 28 day time limit, but the Father and the ICL have had a number of matters to consider as a result of the rather dramatic developments of early April. I am satisfied that leave should be granted in both cases.
There is no question that an order should be made dispensing with service on the Mother. The evidence is that she is out of the country as a result of her own decision and she can apparently be contacted by email.
Whilst subsection 117(1) of the Act provides for the general principle that each party to proceedings under this Act shall bear his or her own costs, subsection 117(2) permits the Court, if of opinion that there are circumstances that justify it in doing so, to make an order for costs subject to the provisions of subsections (2A), (4), (4A) and (5) and the applicable Rules of Court.
In this particular circumstance, subsection (2A) must be considered and I note the matters submitted on the father’s behalf by Mr Guterres of Counsel. The Mother’s conduct is a significant matter, not just in relation to the proceedings generally, where she has been consistently dilatory in filing her material as directed, but in the extraordinary circumstances where she went through an elaborate process of deception, not only of the father and her own sister, but also of her own legal advisers, and absconded from Australia with the child rather than attend Court.
The Mother has been wholly unsuccessful in the proceedings and the Court has issued both a Recovery Order and a warrant for her arrest.
Those factors alone would be sufficient to justify the Court in forming the opinion that an order for costs against the Mother would be just.
The circumstances of this case are unusual, to say the least, insofar as the Mother has absconded from Australia and remained outside Australia with the child. It would appear that the Mother may have removed the child from Australia without the consent of the Father or an order of a Court under this Act or an Act of a State or Territory, whilst there are interim parenting orders in existence and final orders pending. These circumstances would be sufficient to raise the inference of a breach of either or both sections 65Y and 65Z of the Act.
I am satisfied that the Father has established a case for costs to be awarded on an indemnity, or solicitor and client basis. As to the quantum of those costs, I calculate that the proper figure should be $53,088.00, as I stated at [12] above.
It appears to me that it is proper to make an order for the Mother to pay the Father’s costs of this Application. It was appropriate for the Father to bring his Application for costs and he has been wholly successful. I do not see that there is a ground to order that these costs should be paid on other that a party and party basis. There is nothing exceptional about this Application for costs that would attract an order for indemnity costs.
The Father’s costs of this Application should be calculated according to Item 3 of Part 1 of Schedule 1 of the Rules, being the amount of $1,706.00 for an interim or summary hearing together with the daily hearing fee under Item 13 and the advocacy loading provided by Item 12. I am satisfied that it was appropriate to employ an advocate in the particular circumstances under r.21.15, and the appropriate rate as provided by r.21.16 is the daily hearing fee and advocacy loading. As this was a half day hearing or less, the proper figure in my view is $1,536.00, which makes a total of $3,242.00.
I am of the opinion that there are circumstances that justify the Court in making an order that the Father should pay one half of the costs of the Independent Children’s Lawyer in the sum of $6,188.60 less the amount he has already paid, which is, on the evidence before me, $1,650.00. The Father is not in receipt of legal aid and I am satisfied that he has the financial resources to pay such an amount, although I am prepared to allow time to pay. The ICL is prepared to allow until 6th October, which appears reasonable. I am satisfied that subsections 117(3) and (5) of the Act provide for such an order to be made. I take into account the fact that the Father was placed on notice by Mr Baker’s letter of 12th February 2014 that he would be required to reimburse the Legal Aid Commission for one half of the entire costs incurred by Legal Aid unless a waiver were to be granted. No waiver has been granted.
I will order that the Father is to pay the sum $6,188.60 to the Legal Aid Commission of New South Wales not later than 6th October 2015, less the amount of $1650.00 which he has already paid.
Similarly, and for the same reasons, I am of the opinion that the Court is justified in making an order that the Mother should pay one half of the costs of the Independent Children’s Lawyer in the sum of $6,188.60 not later than 6 October. She is not in receipt of legal aid and no waiver has been granted. She has not paid any amount towards the costs of the ICL so far, despite being requested to do so by the ICL in his letter of 12th February 2014.
I will order that the mother is to pay the sum of $6,188.60 to the Legal Aid Commission of New South Wales not later than 6th October 2015.
The Independent Children’s Lawyer seeks an order that the Mother should pay the entirety of the costs of the Application in a Case for an order for costs. There is no reason that I can see why the Father should pay any of that amount, as he has been wholly successful in the proceedings. It is entirely due to the Mother that this application has been brought.
The amount sought by the Independent Children’s Lawyer is a total of $2,986.50, which is slightly less than the amount of $3,242.00 that I have allowed for the Father.
The difference is that the Independent children’s Lawyer is charging at Legal Aid rates, which are actually less than the amounts provided by the Rules. In my view, the ICL cannot expect to receive an amount greater than that provided by Legal aid, and I believe that the grant of aid itself would preclude that eventuality (Wade & McPherson[16]).
[16] [2014] FCCA 1321
I will order that the Mother is to pay the costs of the Application in a Case filed by the Independent Children’s Lawyer in the sum of $2,986.50. By my calculations, the total figure for the costs of the Independent Children’s Lawyer to be paid by the Mother amounts to $9,175.10 rather than $9,105.10.
I note that the term “independent child’s lawyer” has been used in this Application. The correct term is “independent children’s lawyer”, as used in s.68LA of the Act. The term “independent children’s lawyer” is defined by s.4 of the Act as:
a lawyer who represents the child’s interests in proceedings under an appointment made under a court order under subsection 68L(2).
This is the case whether the lawyer is representing the interests of one child or more than one child.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 24 August 2015
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