Dunleavy & Reardon
[2023] FedCFamC2F 803
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dunleavy & Reardon [2023] FedCFamC2F 803
File number(s): PAC 5954 of 2022 Judgment of: JUDGE MURDOCH Date of judgment: 30 June 2023 Catchwords: FAMILY LAW – PARENTING - Rice v Asplund – Where the father’s application seeks to discharge final parenting orders made by consent two years prior and increase the time the children spend with him from three nights and four afternoons a week to six overnights a fortnight – Where the mother seeks a dismissal of the father’s application - Where there has been some difficulties between the parties subsequent to the making of the orders but the father has not satisfied the criteria imposed by Rice v Asplund - Application dismissed – Order that the father pay the mother’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 12.13(4), 12.17
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Schedule 1
Cases cited: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225
Edwards v Edwards (2006) FLC 93 – 306
Hadaway & Beckham [2019] FamCAFC 137
Lenova & Lenova (Costs) [2011] FamCAFC 141
Penfold & Penfold (1980) FLC 90-800; [1980] HCA 4
Poisat & Poisat [2014] FamCAFC 128
Marsden v Winch (2009) FamCAFC 152
Rice v Asplund (1979) FLC 90 – 725
Searson & Searson (2017) FLC 90-725
SPS & PLS (2008) FLC 93 – 363
Division: Division 2 Family Law Number of paragraphs: 65 Date of hearing: 23 June 2023 Place: Parramatta Counsel for the Applicant: Ms Hayward Solicitor for the Applicant: Karen L Haga & Associates Solicitor for the Respondent: Ms Godden of Godden Lawyers ORDERS
PAC 5954 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DUNLEAVY
ApplicantAND: MS REARDON
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
30 jUNE 2023
THE COURT ORDERS THAT:
1.The Initiating Application filed on 28 October 2022 is dismissed.
2.The Response filed on 29 November 2022 is dismissed.
3.Within 28 days the Applicant shall pay the Respondent’s costs of and incidental to the proceedings fixed in the sum of $6,546.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dunleavy & Reardon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
By way of an Application for Consent Orders, final orders were made between the parties by a delegated judicial officer under Part VII and Part VIII of the Family Law Act 1975 (“the Act”) on 8 October, 2020. Relevantly, the parenting orders provide for parties to have equal shared parental responsibility, the parties’ two children to live with the mother and spend substantial time with the father (“the current orders”).
Some two years later the father commenced fresh proceedings seeking to discharge the current orders and replace them with a different regime increasing the time the children spend with him. The mother opposes the application and seeks its dismissal in accordance with the principles enunciated in Rice v Asplund (1979) FLC 90 – 725.
The matter was heard by me on 23 June 2023 on an agreed position that it be heard as a threshold issue without any cross examination and judgement was reserved.
For the reasons that follow, the father’s application to re-litigate parenting issues will be dismissed.
THE FATHER’S APPLICATION
The current orders were made by the court when the children X and Y were 11 and 8 years of age respectively. They provide that: –
·the parties have equal shared parental responsibility;
·the children live with the mother;
·the children spend time with the father as agreed between the parties in writing and failing agreement as follows:-
·two afternoons each mid-week;
·each alternate weekend from the conclusion of school on a Friday to the commencement of school the following Monday morning;
·for one half of all the short school holiday periods in one block period;
·for one half of the long school holiday period on a week about basis; and
·during special occasion periods including Easter and Christmas, Father’s Day and the children’s birthdays.
·When not occurring at the children’s school, changeover of the children between the parties is to occur at the mother’s residence at the commencement of the father’s time and at the father’s residence at the conclusion of such time.
·Further extensive orders were made including that the father advise the mother in writing in the event he is unable to care for the children or they are to spend overnight time other than at his home, that the father be restrained from consuming illicit substances prior to and during the time the children are in his care, that the children be permitted to travel overseas with conditions, for the provision of information as to the children to each of the parties, and further restraining each of the parties from denigrating the other.
By way of his Initiating Application the father seeks orders that:-
·the parties retain equal shared parental responsibility;
·the children remain living with the mother;
·the children spend time with the father as agreed between the parties in writing and failing agreement:-
·in a two week cycle for one overnight in week one;
·in week two from the conclusion of school on a Thursday until the commencement of school the following Tuesday;
·for one half of all school holiday periods to be taken in one block period; and
·during special occasion periods including Easter and Christmas, Father’s Day, the children’s birthdays and on the birthday of each of the children’s step siblings for a period of approximately four hours on a school day and for seven hours if falling on a weekend.
Changeover of the children between the parties when not occurring at school is to occur at the mother’s residence at the commencement of the father’s time and at the father’s residence at the conclusion of such time.
Further extensive orders are sought including a restraint upon the mother from collecting the children during the time the children are spending time with the father, for the provision of information as to the children to each of the parties and that the children be permitted to travel overseas with conditions.
Thus in effect the father seeks to:-
·discharge the current order that he advise the mother in writing in the event he is unable to care for the children or they are to spend overnight time other than at his home;
·discharge the current order that he be restrained from consuming illicit substances prior to and during the time the children are in his care;
·increase the overnight time the children spend with him from three to six occasions a fortnight;
·have an order made that the children spend time with him on each of the birthdays of the father’s step children.
EVIDENCE
The father relies upon the:-
·Initiating Application filed 28 October 2022;
·Notice of Child Abuse, Family Violence or Risk filed 28 October 2022;
·Parenting Questionnaire filed 28 October 2022;
·Affidavit of the father filed 6 March 2023;
·Affidavit of the father (with leave) filed 23 May 2023;
·Outline of Case document (Interim Hearing) filed 30 May 2023; and
·Written Submissions filed 16 June 2023.
The mother relies upon the: –
·Response to Initiating Application filed 29 November 2022;
·Affidavit of the mother filed 14 April 2022;
·Outline of Case document (Final Hearing) filed 30 May 2023; and
·Written Submissions filed 16 June 2023.
The father advised the court and the mother during the course of the hearing that on the prior day the father had filed with the court an Application-Contravention. This application is not before the court and there is no evidence as to the factual basis asserted by the father giving rise to the alleged contravention/s.
THE LEGAL PRINCIPLES
Whilst the Act recognises that no parenting order can ever be truly immutable, it is well established that the court should only hear an application to vary an earlier parenting order if it is satisfied that there has been a change in circumstances that is sufficiently significant to warrant doing so. This is often identified by the principle arising from the judgement of the Full Court in Rice v Asplund (1979) FLC 90 – 725; [1978] (“Rice v Asplund”). It is a manifestation of the paramountcy principle: Poisat & Poisat [2014] FamCAFC 128. As recorded by the Full Court in Edwards v Edwards (2006) FLC 93 – 306: (“Edwards v Edwards”).
The principles recognise the damage which may be caused to children by endless litigation which may, directly or indirectly, expose them to conflict, and the potential abuse of a child by subjecting the child to repeat expert interviews.
If the father’s evidence demonstrates a material change in circumstances I must then consider whether the asserted need to vary the orders outweighs the potential detriment to the children of fresh litigation: Marsden v Winch (2009) FamCAFC 152 (“Marsden v Winch.”)
It is the father’s submission that:
…the question for the court must always be guided by what is in the child’s best interest in the circumstances of the particular case…. and accordingly it is contended that the current application cannot be assessed in a vacuum with an assessment only of changes present since the making of orders....
The father contends that the…matters assessed cumulatively demonstrate that the orders do not meet the best interests of the children and require the court to reassess the parenting orders consistent with the objects and principles of the Act.
I do not accept that the father’s submission is reflective of the dicta of the Full Court in Rice v Aspund, Edwards v Edwards and Marsden v Winch.
As the parties were not cross examined the threshold issue is to be determined by accepting the father’s untested evidence at its highest unless such evidence is inherently unreliable: see SPS & PLS (2008) FLC 93 – 363 and Searson & Searson (2017) FLC 90-725 at [11].
DISPOSITION
Turning now to the material change in circumstances asserted by the father during the course of oral submissions.
Changes in Family Structures
The father submits that it is clear that since the making of the current orders there has been a change in the family structures of both households. At the time of the making of the current orders the father submitted that he was in a “fledging” relationship with his partner Ms B. The father and Ms B have now married and the children have two step siblings in the father’s home. The father and Ms B are due to have a child in 2023.
At the time of the making of the current orders the mother was in a relationship with Mr C and remains so. The mother and Mr C now live together and are due to have a child.
Material produced under subpoena by a psychologist at D Health Service records X advising the psychologist in late 2020 that the father and Ms B had become engaged two weeks previously and records that Ms B has two children; E aged six years and F aged two years. This is at odds with the husband’s assertion that the relationship was at a “fledging” stage at the time of entering into the current orders. In any event, the evolution of each of the parties’ relationships with those same people that they were in a relationship with at the time of the making of the current orders could not possibly be seen to be a sufficient change to warrant the care arrangements for the children being re-litigated. As stated by the Full Court in Heaney & Bannister [2019] FamCAFC 137:
…it would be a surprising outcome if parenting orders were liable to be re-litigated every time one parent falls into or out of a new relationship. If that was so, any attempt to imbue orders under Part VII of the Act with lasting effect would be virtually futile.
The Father’s Residence
It was submitted that at the time of the making of the current orders the father “was in a state of flux” and did not have a home for the children; there was a period of time when the consent orders were made that the father was staying with friends or family members. The father conceded during the course of oral submissions that it was anticipated by him at the time of entering into the current orders that he would be changing this temporary living arrangement. This change was thus clearly foreseen by the father at the time of entering into the current orders. In any event, it is uncontested that the father has not moved from Suburb G, New South Wales – merely the property that he is living in.
The Contended Difficulties with the Current Orders
The father asserts that subsequent to the making of the current orders conflict has arisen between the parties arising from the children’s extra-curricular activities, the mother collecting Y when she perceives it is easier for Y to go with her and the changeover of the children between the parties’ households both during school terms and holiday periods. The father submitted that he wants to be a more significant part of the children’s lives. He further submitted that the mother concedes there are difficulties with the current arrangements but proposes that they continue, whereas the father’s proposal will remedy the issues by having a more streamlined approach with less changeovers between the parties’ households.
The father submitted that it is clear on either parties’ version of events that the current orders are “not working for the children”. It was submitted that the children are significantly disrupted by mid-week extra-curricular activities and that having afternoon time mid- week rather than over-night time is causing significant difficulty for the children. The court was not taken to any specific evidence as to the nature of the significant difficulties the children are experiencing as a result of spending midweek afternoon time with him.
The father deposes as to his view that the time the children spend with him mid-week is rushed. He gives evidence as to the usual activities he undertakes with the children on the Monday and Wednesday afternoons the children spend with him until 7:00 pm. This involves the children having an afternoon snack and completing their homework, playing out in the yard and then having dinner at 6:00 pm prior to being collected by the mother at 7:00 pm. The father’s complaint is that he and the children do not get the opportunity to relax; there is limited time to work with the children on homework and he does not get the opportunity to put them to bed on these nights or get them ready for school the next morning. The father complains that during the sports season the children have to be ready by 5pm on a Wednesday so that the children and the father can leave for Y’s practice. Having the children on a Wednesday afternoon means that his time with the children is rushed and he is required to take X with him to such practice.
There is no evidence as to how such arrangements for the children have materially changed since the making of the current orders. It was clear at the time of entering into the current orders that the father would be required, as a responsible parent, to assist the children with their homework as required and have fed them dinner prior to being returned to the mother. The activities described by the father are the usual activities a parent is required to undertake with children mid-week during school terms. The father concedes in his evidence that “to an extent” it is true that he has insisted that all of the children’s extra-curricular activities and tutoring is undertaken whilst the children are in the mother’s care. The father’s proposal to have the children on a Tuesday night only will mean that he will not be responsible for taking Y to sports practice and this responsibility will then fall onto the mother. There is no evidence that the mother would not then have to engage in the same routine within the same time limitations with the children of a Wednesday afternoon during sports season. It appears that the father’s wish to be a more significant part of the children’s lives does not include a wish to undertake the responsibility of the arrangements necessary in engaging in their extra-curricular activities. The evidence is that the current mid-week arrangements appear to be not working for the father, rather than the children.
The father’s affidavit is replete with complaints as to the mother’s conduct. Such complaints include his assertion that the mother does not communicate in a respectful manner and the parties are unable to make consensual arrangements with respect to the time the children are to spend with him.
It is clear from the evidence that these parties have a conflictual relationship. Both communicate with the other in an unfortunate manner and one that is not conducive to a harmonious co-parenting relationship. There is no evidence that the conceded conflictual nature of the parties’ relationship has arisen solely subsequent to the making of the current orders. The mother deposes that such conflict existed well prior to separation and continues post separation and that the conflict appears to have dramatically escalated subsequent to the father’s commencement of litigation. The father conceded during the course of oral submissions that the court would not be able to make a finding that the parties were able to co‑parent the children at the time of the making of the current orders. The father concedes that his requests to the mother since the commencement of 2022 to vary the current orders has led to more conflict between the parties. Thus one source of conflict between the parties is of the father’s own making.
I agree with the mother’s submission that there are clear and defined orders for both term and school holiday time in the event the parties are unable to reach an amicable decision as to when such time is to occur. The father now appears to have availed himself of the remedy available to him in the event he asserts that the mother is not complying with the current orders. There is no evidence as to how the change in orders sought by the father will assist the parties in their communication, nor in their ability to reach amicable agreements as to the time the children spend with the father. It is difficult to see how the father’s proposal that the children moving to an almost equal shared care arrangement will decrease the conflictual nature of the parties’ relationship including difficulties arising from moving between the parties’ households. Whilst the father’s proposal may decrease the amount of times the children move between one party and the other, an almost equal shared care arrangement requires significant communication and cooperative co-parenting for it to be in the children’s best interests.
Whilst the father makes significant complaints as to the mother making unilateral decisions as to the children’s arrangements including unilaterally enrolling them in extra-curricular activities, he does not seek to change the allocation of equal shared parental responsibility to the parties. The father does seek a specific order that both parties are to agree to any extra‑curricular activities the children are to attend and that each party is to ensure that the other parents’ details are included on sport registration forms and the communications relating to such activity. It does not appear that this will alleviate the continuing conflict as to the children’s attendance at extra-curricular activities; it simply means that the father will be able to, in effect, exert a veto power over any enrolments by the children. There is no proposal by the father as to how any disagreement as to the children’s enrolment in extra-curricular activities is to be resolved. It is the father’s evidence that he was able to be added to the team’s communications after speaking with the coach of the team. There is no evidence that this would not occur with all activities in which the children are engaged.
In the event the father is of the view that the mother is not complying with the current orders including collecting Y when she is not supposed to pursuant to the current orders he has enforcement remedies available to him – which he has now availed himself of.
Children’s Wishes
The father submitted that the children have expressed a clear wish to spend more time with him. During the course of submissions the father relied upon the notes produced under subpoena from the D Health Service. The court’s attention was directed to notes taken of a session between the psychologist and X which records:
Would like to spend more time doing fun things with dad.
Upon the court noting that such a note could be read in several ways, it was again submitted that there are various references throughout the records of the children being recorded as wanting to spend more one on one quality time with the father, which appears to be conceded by the mother, including on page 10 where it is recorded that:
[Y] states ‘Don’t feel like dad makes enough time 1 on 1 with him’
It was submitted by the father that it appears the children are expressing views and those views should be given some weight and consideration.
The mother agreed with the father that the material produced under subpoena records the children’s views. It was submitted that the children have clearly expressed their view that they experience difficulty with communicating with and relating to the father and that they want to spend more quality time with him as opposed to simply more time – the children feel that they are not getting enough one on one time when they are in the father’s care as he does not make them a priority in the household that consists of two other children. The mother submitted that these feelings are not going to be resolved by the children spending additional time with the father but rather by the father prioritising them during periods of time they are spending with him.
The notes record the following with respect attendances by X:
·On 16 June 2021:
[X] doesn’t want to stay on a Monday night at dads….
[X] reports it is difficult to communicate with dad sometimes.
·On 3 February 2022:
[X] is disappointed that his dad isn’t putting effort in.
·On 23 February 2022:
he doesn’t want to go there while dad is away….
Would like to spend more time doing fun things with dad…
Values time 1:1 with dad.
Told dad to not yell at me.
… parents arguing is the hardest.
And with respect to attendances by Y:-
·On 8 February 2022:
difficult to talk to dad about difficult conversations.
[Y] states he finds it difficult to talk to dad. Don’t want to upset him…..
[Y] states ‘feels that [F] is more of a priority.’
·On 25 May 2022:
[Y] states he would like more one on one time with dad.
“If [F] and [E] can’t do it then we can’t do it” and they are younger.
Only want to be at dads when dad is there…
Alone time- break from [F] and [E].
Dad doesn’t listen when I ask him to go home.
·On 17 August 2022 and a session that the father also attended:
[Y] states ‘don’t feel like dad makes enough time one on one with him.’
Together set a Goal- project time on Wednesday afternoon- carve out regular time.
In reply the father submitted that the specific interpretation given to the material by the mother is not open.
The father in effect seeks that the court make selective inferences from the material solely in his favour. The weight I can place on the psychologist’s notes is limited in the circumstances however, I can comfortably find that both children are recorded as expressing to the psychologist that they are experiencing difficulties communicating with the father, and neither children want to be at the father’s home when he is not there. Both children have expressed their desire to spend more one-on-one time with the father. I cannot make a finding as the father seeks that this means the children want to spend more time with him rather than the father ensuring that he prioritises time with them separate to his stepchildren during the times he spends with them currently.
Order 4 of the Current Orders
The father deposes that he did not obtain legal advice prior to entering into the current orders and did not understand that the order requiring him to notify the mother if he was unable to care for the children or they would be spending overnight time other than at his residence would include, for example, the children were having a sleepover.
It was solely within the father’s province to obtain legal advice. In evidence is an Affidavit sworn by the father in support of the making of the current orders wherein he deposes that he was aware of his right to obtain legal advice and chose not to do so – he wished to finalise the matter on the basis of the proposed terms. The delegated judicial officer must have formed the view that the proposed orders were in the best interests of the children when deciding to make them on a final basis. The father cannot complain of something that was of his own doing. The father asserts that the notification requirement is overly onerous and “may become problematic into the future.” There is no evidence as to how such requirement is overly onerous. There is no evidence that such requirement has been problematic to date.
Turning now briefly to the further matters raised by the father in his written submissions but not alluded to during the course of oral submissions.
The Father’s Employment
The father deposes that at the time of entering into the consent orders he was travelling weekly as a result of his employment as a Manager in the financial services sector. In early 2022 the father’s role with the same organisation changed which requires travel of only two nights per quarter.
It is difficult to determine the significance of this change when there is no evidence as to what “travelling weekly” entailed – there is no evidence that this was even on an overnight basis. In any event, at the time of this undetermined travel the parties agreed that it was in the children’s best interests that they spend two afternoon’s mid-week each week with the father together with each alternate weekend for three nights. It does not appear that the father’s travel requirements at the time of the making of the current orders impeded his ability to spend substantial time with the children. In any event, a change in role which may have decreased some of the father’s travel requirements is a life circumstance which is reasonably foreseeable – as with entering into a new relationship.
The Medical Needs of the Children
The father asserts that he entered into the current orders on the basis of representations made by the mother as to the children’s medical needs. The father submits that the children’s school and psychologist records do not identify any diagnosis for the children from a medical professional.
The father agreed by way of execution of the Application for Consent Orders filed in support of the making of the current orders as to the medical issues of the children. There is no evidence that this is incorrect. The father is at liberty to speak to all of the children’s medical treating practitioners; noting that he has equal shared parental responsibility and proposes that this continue. A simple assertion of belief by the father without any evidence is not a sufficient foundation to be satisfied that there has been a material change in the children’s circumstances.
The father alludes to his inability to obtain a “full understanding” of an alleged incident that occurred shortly subsequent to the parties’ separation involving Y and the mother’s nephew. The Police were involved but he has been unable to obtain any further information about the incident.
The father has chosen not to avail himself of the opportunity available to him to obtain records from the police with respect to the alleged incident. It appears that alleged incident occurred prior to the father entering into the current orders. The father does not seek any specific orders in his fresh application seeking to restrain the children not coming into contact with the mother’s nephew. It appears that the father is attempting to “mud sling” in the hopes that some of it will stick thus allowing him to re-litigate the parenting arrangements for the children. It does him little credit.
The Making of the Current Orders
The father relies upon his choice to not obtain legal advice at the time of entering into the current orders to assert that he did not appreciate that the current orders “suggest that I drink excessively or that I have used illicit drugs”. Again, it was solely within the father’s province to obtain legal advice and he chose not to do so. I reject the father’s assertion that an order restraining him from drinking excessively or using illicit drugs whilst the children are in his care suggests that he does so. There is no evidence as to any difficulties experienced by the father in complying with these orders.
Conclusion
I accept that there has been some difficulties between the parties subsequent to the making of the current orders. On consideration of all of the subject matters raised by the father both individually and collectively, and accepting the father’s evidence at its highest, I am not however satisfied that the father has demonstrated a material change in circumstances sufficient to warrant the court hearing an application to vary the current orders. The material changes asserted by the father are either not open on the evidence, are to be expected as part of the normal vicissitudes of life, or are more appropriately dealt with by way of enforcement proceedings. I re-iterate my comment to the parties made during the course of the hearing that the court has the power to vary parenting orders when determining an Application‑Contravention irrespective of whether a contravention of orders is found to have occurred. Whilst the parties’ co-parenting relationship is conflictual, there is no evidence to support a finding that the father’s proposal will alleviate such conflict. The father has not satisfied the criteria as set out in Rice v Asplund to permit his prosecution of these fresh proceedings.
Even if the father were to have established a material change in circumstances, I am not satisfied that it would be in the best interests of the children to be engaged in the process of litigation including the attendance upon experts for the purposes of the preparation of reports. The children have clearly expressed to the psychologist that they do not want their parents involved in conflict. The father did not challenge the assertion of the psychologist by way of an email to him dated 20 March 2023 that at an appointment with X on 16 March 2023 X stated:
… He is feeling overwhelmed at the moment with the sharing of information about the current court process and messages and emails between his parents. [X] reports he is having difficulty sleeping and feeling symptoms of panic. [X] states he doesn’t know who to trust and believe in this is very stressful.
The father’s submission that the court’s mandatory consideration of the impact of ongoing litigation on the children is somehow ameliorated or reduced in effect by the fact that the children have not been involved in litigation to date is of little comfort. I am not satisfied that the father’s asserted need to vary the current orders outweighs the potential detriment to the children of litigation. It appears that the current proceedings are already having an adverse effect on the children, especially X. The father’s application to vary the current parenting orders must be dismissed.
COSTS
In the event the father is unsuccessful the mother seeks he pay her costs on an indemnity basis. The mother submits that the current orders are less than two years old and the father had no reasonable prospects of success; the appropriate application for the father having regard to his complaints was to file a contravention application which he has now done.
The father opposes this course and submits that each party should bear their own costs in circumstances where the father placed genuine evidence before the court as to his experience and the proceedings were not vexatious.
Section 117(1) of the Act provides that each party to proceedings shall bear their own costs subject to subsection (2), which states that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs as the Court considers just. Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on the applicant who seeks the costs order: Penfold & Penfold (1980) FLC 90-800; [1980] HCA 4. Subsections 117(2A)(a) to (g) of the Act set out the matters that must be taken into account in determining whether to exercise the Court’s discretion and make a costs order. No one factor must be present, and no particular factor has more or less weight than any other. There may however be a dominant or outstanding feature that makes an order for costs appropriate.
Rule 12.13(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) mandates that a party applying for an order for costs on an indemnity basis must inform the Court if the party is bound by a costs agreement and if so, the terms of such costs agreement. In circumstances where this evidence is not before the Court, the mother’s application for indemnity costs must fail. In any event, for the reasons set out below I am not satisfied that there are exceptional circumstances in this case that would warrant an order for indemnity costs: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225.
The father has chosen not to place any evidence before the court as to his current financial circumstances. Whilst in evidence is an objection to assessment lodged by the father with the child support agency on 29 May 2000 in which the father asserts that he is unable to afford the child support level at which he has been assessed which has placed a huge amount of financial strain and stress on his family and he is left with less than $200 per week to support his family, the father has paid legal costs to date in the sum of $36,904. Costs recorded but not billed are in the sum of $8,000 and the further anticipated costs to attend at this hearing was a further $14,000; a total sum of $58,904. Whilst the case law makes it clear that modest, or even poor, financial circumstances are not determinative of the issue (see Lenova & Lenova (Costs) [2011] FamCAFC 141), I am satisfied that the father must have some financial resource available to him to meet his legal fees.
The current financial circumstances of the mother is not known.
On 17 November 2022 the mother forwarded to the father an open offer to settle the current proceedings on the basis that the father withdraw his application and each party bear their own costs. Attached to the father’s affidavit is an email from the mother to the father dated 3 January 2023 emphasising the significant costs that will be incurred by each of the parties both up to the hearing of the threshold issue and beyond in the event the father’s application is successful. The mother proposes to: “.stick with the current orders. Which we should just do and agree on minor changes, such as a couple dates next year, and be flexible. Like we were before you met [Ms B]. Communicate and compromise.”
The father has been wholly unsuccessful in his application to re-litigate parenting issues.
I am satisfied having regard to the above, that an order should be made for costs in favour of the mother.
No submissions were made as to the quantum or method that should be adopted by the court in assessing costs. The cost disclosure statement for the mother records that the total costs (billed and unbilled) as at 30 May 2023 is $13,898. The estimated costs for attendance at the threshold hearing is $5,000.
Rule 12.17 states that the court may order costs:-
·of a specific sum;
·as assessed on a particular basis;
·to be calculated in accordance with a method determined by the court;
·or as assessed in accordance with Schedule 3 of the Rules. In circumstances where this schedule is applicable to proceedings in Division 1 of the court, this court may apply the scale of costs at Schedule 3 or the scale of costs at Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) (“the Division 2 Rules”). For the work undertaken prior to 1 September 2021 the scale is that set out in Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
I am satisfied that it is appropriate to fix a lump sum so as to avoid further delay and inconvenience to the parties by the requirements of a bill being taxed: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51]. I am satisfied that it is fair and reasonable where the proceedings are in Division 2 of this court to apply the scale as set out in Schedule 1 of the Division 2 Rules. In circumstances where the father briefed counsel to appear on the two occasions the matter was listed for hearing I am satisfied that an advocacy loading is appropriate. I make orders for costs in the sum of $6,546 as set out hereunder.
Item Description Amount (including GST) 2 Initiating or opposing an application that includes interim orders (other than procedural orders) up to the completion of the first court date (a) $2,357
(b) $32113 Daily Hearing Fee – 2 February 2023 $321 13 Daily Hearing Fee – 31 May 2023 $321 13 Advocacy Loading – 31 May 2023 $161 4 Summary Hearing as a discrete event $1,964 15 Preparation of Written Submissions as Directed- three hours $780 10 Attendance to take judgement and explain orders $321 Total $6,546
Orders will be made accordingly.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 30 June 2023
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