Edgar v Halle (No 2)

[2010] FamCA 260

FAMILY COURT OF AUSTRALIA

EDGAR & HALLE (NO. 2) [2010] FamCA 260

FAMILY LAW  -  COSTS  -  parenting orders  -  false allegations and statements by father  -  knowingly made  -  father to pay costs

Family Law Act 1975 (Cth), ss 117(1), 117(2), 117(2A), 117AB
Family Law Rule 2004, Schedule 3

FATHER: Mr Edgar

MOTHER: Ms Halle

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8444 of 2008

DATE DELIVERED: 12 April, 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J.

HEARING DATE:

Submissions filed

15 February, 2010

in chambers

THE FATHER: In person

SOLICITOR FOR THE MOTHER: Altavilla Vessali

INDEPENDENT CHILDREN’S LAWYER Kenna Teasdale

Orders

1. That the father pay the mother’s costs of and incidental to these proceedings fixed at $10,856 and such costs be paid by him within three months of this date.   

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC  8444 of 2008

MR EDGAR

Father

And

MS HALLE

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 3 February, 2010 final parenting orders were made in respect of the parties’ son, born in January, 2000.  Reasons for judgment were published.  The mother and the independent children’s lawyer were represented by counsel;  the father appeared in person.  Counsel for the mother made an application for costs.  As the father was not legally represented, the court determined it appropriate to require the filing of written submissions in support of the application, to ensure the father had time to consider the application, obtain legal advice if he wished to do so and make submissions in response. 

2. On 3 February, 2010 the court ordered the mother to file and serve written submissions by 17 February, 2010.  Orders provided for the father to file and serve any written submissions in response by 3 March, 2010 and for the mother to file and serve any written submissions in reply by 10 March, 2010.  An order provided that a copy of any submission filed be faxed to my associate within twenty-four hours of filing.  The father was present when those orders were made.

3. The same day (3 February, 2010) a letter was sent to the father at his address for service, containing a sealed copy of the order relating to the costs application and a copy of ss.117 and 117AB of the Family Law Act 1975.

4. On 15 February, 2010 the mother filed written submissions in support of her application for costs.  Before the court is a copy of a letter to the husband enclosing the submissions in support of the costs application, posted to the father at his address for service on 17 February, 2010 and copies of letters passing between the parties in respect to settlement offers, to which I will later refer. 

5. The father was required to file and serve any written submissions in response by 3 March, 2010.  No submissions were filed by 3 March, 2010 and no submission has been filed to date. 

6. The mother seeks that the father pay her costs of $10,856, a sum calculated pursuant to Schedule 3 of the Family Law Rules 2004.

7. Section 117(1) of the Family Law Act 1975 contains the general rule that parties to proceedings under that Act bear their own costs. Pursuant to s.117(2), the court may make such order as to costs as it considers just if, in its opinion, circumstances justify such an order. In considering what order (if any) should be made, the court must have regard to the factors set out in s.117(2A).

8. Section 117AB applies if proceedings under the Family Law Act 1975 are brought before a court and the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in those proceedings. In those circumstances, the court must order that a party pay some or all the costs of another party to the proceedings.

9. I will consider each of the relevant statutory provisions. 

Section 117(2A)(a) – financial circumstances of the parties

1. The evidence in the trial was of the mother working three days a week at V Organisation. She earns approximately $400 per week and receives approximately $150 per week from Centrelink.

2. The father’s evidence in the trial was that there was no child support assessment in existence in relation to the child and it was common ground that he pays no periodic support for his son.  However, he agreed that a recent tax refund of about $3,500 had been diverted from him to the mother through the Australian Taxation Office, which is indicative of arrears of child support accrued over some time. 

3. The mother is responsible for the child’s financial support, save for periods he is with his father, pursuant to orders. 

4. The father’s evidence in the trial was of receiving a carers’ benefit from Centrelink for looking after his mother.  The court was sceptical of his claim that his mother lived with him.  His evidence was that people were “beating me to work”;  indeed, “hundreds of people” wanted him to work for them.  Giving evidence he spoke of renting a three or four bedroom home within a month or two of the trial.  When pressed as to how he could afford to do that, he said there were “a lot of options for work, as long as my mother can be cared for”.

5. The court found the father to be an unreliable witness, a finding which extends to his evidence about his financial position. 

Section 117(2A)(b) – receipt of legal aid

1. Neither the father nor mother was in receipt of legal aid.  There is no claim for costs by the independent children’s lawyer.

Section 117(2A)(c) – the conduct of the parties

1. The mother submitted that the father was afforded an opportunity to settle the case on at least three occasions and that each offer proposed more time with the child than the court eventually ordered. I will consider those offers when considering s.117(2A)(f).

2. The father acted for himself during the trial.  Despite court orders requiring him to file and serve affidavits of each witness on whom he intended to rely, he sought to call four witnesses to give oral evidence in the trial.  One was a member of the police force, one a DHS protective worker, one a teacher and student welfare co-ordinator at the child’s school and the last a family friend.  The evidence of the first three of those witnesses failed to corroborate the father’s account and it was his final submission that each of them lied to the court.  In relation to the last witness, Ms. T, the court found that her evidence and that of the father differed significantly in respect of the incident about which she was called, that she gave the impression of embellishing her evidence as she went along and that it could have little confidence in her commitment to telling the truth. 

3. Calling these witnesses extended the hearing.  The father maintained his application to call them despite an early caution from the court about the potential for his case to be damaged, were they called and fail to corroborate his account of events. 

4. The father alleged that the mother had viciously assaulted the child;  it was those allegations which resulted in the case being referred to the Magellan list.  The court found no substance in the allegations. Contrary to the father’s allegations, the court found that he and his mother had both been physically violent to the mother and that he had behaved in a threatening and intimidatory way to her;  it found that the father’s recent conduct was indicative of him stalking her.  Much of the trial was taken with evidence of the violence the mother allegedly inflicted on the child, allegations found to be without foundation.

5. When the family consultant was made aware of evidence adduced in the trial of the father’s violence to the mother, his mother’s violence to the mother and the child’s exposure to this violence, he reconsidered the recommendations made by him in the family report.  He was also concerned about evidence (of which he was not aware when the family report was prepared) including evidence indicative of the father’s attitude to authorities such as police, protective workers and teachers. The court accepted as soundly based his recommendation that the child should spend less, rather than more, time with the father. 

Section 117(2A)(e) – whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. It was the submission of the mother that the father was wholly unsuccessful in the proceedings.  He sought that the child live with him and spend only a few hours with the mother in each week.  The mother initially sought orders as recommended by the family reporter and proposed by the independent children’s lawyer and subsequently amended that application to support the orders proposed by the independent children’s lawyer at the end of the trial. 

2. The orders made on 3 February, 2010 provide for the child to live with his mother and for her to have sole parental responsibility.  They limited the time the father is to spend with the child to alternate weekends, half school holidays and special occasions, and as otherwise agreed between the parties. 

Section 117(2A)(f)

1. On 25 February, 2009 the independent children’s lawyer forwarded a minute of proposed orders to each of the parties, proposing settlement of the case in accordance with the recommendations contained in the family report.  Those recommendations provided for the child to spend five nights a fortnight with his father, together with half school holidays and time on special occasions, and other times as agreed between the parties.  The child was then spending three nights per fortnight with his father.

2. It was submitted by the mother that a further offer to settle the matter was made at a mediation on 14 July, 2009.  I do not place weight on that offer.  I do place weight on a subsequent proposal to settle made by the independent children’s lawyer on 24 July, 2009, again based on recommendations in the family report.  On 6 August, 2009 the solicitors for the mother consented to the proposals put forward by the independent children’s lawyer.  The father did not.

3. The court found that when the father saw the family consultant on 29 January, 2009, he sought that the child live with him and spend three nights a fortnight with his mother, as well as time during school holidays and on special occasions.  By the time the trial commenced he sought that the child live with him and spend a short period of time with the mother on each alternate weekend, supervised by him or by the Department of Human Services.

Section 117AB

1. The court found that the father made numerous false allegations and statements in the course of the proceedings, motivated by antipathy towards the mother. The judgment is scattered with findings to this effect. In finding that the provisions of s.117AB(2) apply, I refer only to the finding in paragraph 201 of the judgment that the father’s evidence of the mother attempting suicide by leaping through a window was “a deliberate and malicious distortion of the facts as he knew them”.

CONCLUSION

1. I am satisfied the father should pay the mother’s costs of the proceedings.  Having regard to the size of the file the costs claimed are modest.  I fix the costs at $10,856.  A stay of three months is granted. 

I certify that the preceding
27  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2010.

…………………………………………
Associate.