EDGER & BLANCHE

[2013] FamCA 17

FAMILY COURT OF AUSTRALIA

EDGER & BLANCHE [2013] FamCA 17

FAMILY LAW - CHILDREN – interim application for the child to live with the father – application withdrawn
FAMILY LAW - CHILDREN – interim application for the child to attend a particular secondary school– orders made
FAMILY LAW - COSTS – order made for costs on an indemnity basis

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Colgate- Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248
Munday v Bowman (1997) FLC 92-784
Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd [1988] 81 ALR 397
Tetijo Holdings Pty. Ltd. v. Keeprite Australia Pty Ltd (unreported, Federal Court, 3 May 1991)
Ragatta Developments Pty. Ltd. v. Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)

APPLICANT: Mr Edger

RESPONDENT: Ms Blanche

FILE NUMBER: MLC 3559 of 2010

DATE DELIVERED: 30 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 25 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson

SOLICITOR FOR THE APPLICANT: MA Legal

COUNSEL FOR THE RESPONDENT: Ms Dowler

SOLICITOR FOR THE RESPONDENT: Plaza Legal

IT IS ORDERED THAT

1. The child of the relationship C born … August 2000 be enrolled at and attend at D Secondary College for his secondary education save and except as may be otherwise agreed in writing by the father and the mother.

2. The interim applications of the father and the mother be otherwise dismissed.

3. The Initiating Application filed 10 January 2013 and the Response to the Initiating Application for final orders filed 23 January 2013 be placed in the pool of cases awaiting allocation to a judicial docket.

4. By 4.00pm on 30 April 2013 the father pay the mother’s costs of and incidental to these proceedings on an indemnity basis fixed in the sum of $7936.    

IT IS NOTED that publication of this judgment by this Court under the pseudonym Edger & Blanche has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3559  of 2010

Mr Edger

Applicant

And

Ms Blanche 

Respondent

REASONS FOR JUDGMENT  

1. This matter was listed before me in the Judicial Duty List initially on 24 January 2013 and again on 25 January 2013.

2. On 10 January 2013 the father filed an Initiating Application in which he sought orders both on an interim and a final basis that the child of the relationship who is now 12 years of age and shortly to commence his secondary education live with him for 9 consecutive days each fortnight, that he spend equal time with both his father and his mother on special occasions and holidays, that he be enrolled at and attend E School for his secondary schooling, that the father pay the tuition costs of his attendance at E School and that the mother pay for ancillary costs including uniforms, extracurricular activities, books and stationery. The father estimated those ancillary costs to be approximately $1200 per annum. The mother asserted that the costs would be likely to be more than the father’s estimate of $1200 but could not specify an exact amount. Whatever those costs might be it was her case that she did not have capacity to meet them and that in all the circumstances should not be required to do so. The mother was agreeable to the child attending E School on the condition that the father pay all the costs associated with that attendance including the ancillary expenses.

3. Although ultimately all I was required to determine was whether the child should attend D Secondary College or F Secondary College and whether the father should be required to pay the mother’s costs of these proceedings. Some background to the case is necessary to the decisions I am required to make.

4. The parties were in a relationship for approximately two years. The child was approximately 12 months old when they separated. It is the mother’s case that she has always been the child’s primary caregiver and that she and the child have a close and loving relationship. Final orders were made by consent on 17 December 2004 which provided that the father and the mother have the joint responsibility for the long term care welfare and development of the child, that he live with the mother who has the sole responsibility for his day to day care, welfare and development and that he spend each alternate Thursday afternoon until 9.00am the following Monday in the first week and from Thursday afternoon until 9.00am Friday in the second week of each two week cycle with the father. The orders also provided for holidays and special occasions. 

5. The father has remarried and lives in Suburb B with his wife and their two children aged 7 and 3. The mother also has a new partner and she has three children of that relationship aged 7, 5 and 1.  

6. The father in both his Initiating Application and his affidavit described himself as being employed in the sales field however on the second day of the hearing before me I was advised by his Counsel that he has been unemployed since late December 2012.

7. The mother is engaged in home duties and is dependent upon her new partner for her support and for that matter the support of the child the subject of these proceedings save and except for the child support paid by the father in the sum of $160.00 per month. The mother has been diagnosed with breast cancer and is currently undergoing treatment.

8. The child commenced his education at S Primary School in 2006, which was at that time close to where the mother says she was living. In February 2010 the child was enrolled at K Primary School following the mother’s move to her current home.  

9. Notwithstanding that final orders were made in December 2004 the father has in recent years filed a number of applications seeking residence of the child and in relation to the child’s schooling.  On 20 April 2010 he filed an Initiating Application seeking that the child live with him and that he be returned to S Primary School. The matter came on for hearing before FitzGibbon SR on 7 May 2010 and orders were made by consent that made provision for the child spending time with the father during the school term and summer holidays, that the child continue his schooling at K Primary School and that the orders made 17 December 2004 otherwise remain in full force and effect.

10. On 15 November 2010 the father filed a further Initiating Application seeking that the child live with him and orders that the parties consult regarding the child’s secondary education. The father filed an Amended Initiating Application on 23 November 2010. On 16 December 2010 the Court gave the father leave to withdraw his application. The orders of 17 December 2004 were unchanged.

11. The father, in support of his Initiating Application and in particular his application for interim orders filed an affidavit in support in which he alleges that the mother has not communicated with him with respect to her diagnosis and treatment for cancer and asserts that the mother’s health impacts upon the child’s wellbeing and that the child is being neglected as a result of the mother’s illness. It is on that basis that he put his case that the child should live with him. This is of course disputed by the mother. I expressed a preliminary view that the father might have some difficulty particularly on an interim basis, in the face of contested evidence, establishing that there had been a sufficient change in circumstances to justify the reopening of the case let alone an order changing what is a very longstanding arrangement for this child’s care.

12. In support of the father’s application with respect to the child’s secondary education the father deposed that he had organised an interview for the child at E School and that the child had been elated when he had successfully gained acceptance to the school. It was the father’s case that it would be in the child’s best interests to attend E School.

13. The mother’s case, as I have previously mentioned, was that she was agreeable to the child attending E School but only on the basis that the father meet all the costs associated with him doing so, including ancillary expenses, as she could not afford to do so. The mother was also concerned to ensure that the child support would not be reduced as a result of the child attending E School.

14. As it was the father’s case that he would pay for the child’s tuition it ultimately came down to a dispute in relation to what the father said would be $1200 per annum and possibly the child support presently paid by the father which amounted on the basis of the current assessment to $1920 per annum or $37 per week. Even if the father continued to pay the child support as assessed if the mother were to pay ancillary costs of $1200 per annum or thereabouts she would be left with child support payments of approximately $14 per week. Clearly that amount would not be sufficient to support the child. Whilst the father might be commended for wanting to give his child a private school education sometimes that is not financially achievable. It does concern me that the cost of these proceedings would have gone a long way towards meeting the ancillary expenses that were the subject of the dispute.

15. Somewhat to my surprise the father not only decided not to proceed with his interim application for the child to live with him but also withdrew his interim application seeking that the child attend E School. It was the father’s case that he could not afford to pay the school fees for E School unless and until the child was living with him. Notwithstanding that the father had withdrawn his interim application that the child attend E School the parties were still unable to agree upon whether the child should attend D Secondary College or F Secondary College. Clearly the decision as to which school a child should attend is a parental responsibility and the parties inability to reach agreement may signal that the parties sharing responsibility for these decisions is not in this child’s best interests.

16. In making an order such as this one the paramount consideration is the best interests of the child the subject of the order. In determining what is in the child’s best interests I must have regard for both the principle and additional considerations in s60CC(2) of the Family Law Act 1975 (Cth). The analysis of those considerations must be consistent with the objectives of the Act and the principles underlying those objectives. That being said this is an issue of very limited compass and there is little evidence before me in relation to this issue particularly on the part of the father because this was not the basis upon which he had put his case.

17. It was the father’s case that the child should attend F Secondary College, he said because it would be extremely difficult for him to collect and deliver the child to and from D Secondary College because of his work commitments. I was somewhat surprised therefore when I was told that the father was unemployed particularly as I had stressed the importance of the father’s commitment to meet the fees of E School if I were to make an order that he do so because of the need to provide stability and certainty for the child.

18. The mother’s case was that K Primary School was the feeder school for D Secondary College and that the child would know a number of the children going on to D Secondary College from K Primary School. She said that this was now particularly important given how disappointed the child was going to be given that he had been expecting to attend E School. She also said that D Secondary College was more convenient to her home.

19. Until the father obtains new employment it is impossible to know whether D Secondary College or F Secondary College is likely to be more convenient to him.  I am not prepared in those circumstances to make an order that the child attend a school less convenient to the mother when that may not be necessary. I am also persuaded by the submission that the child would benefit from being at a school with other students with whom he is familiar particularly given that he may be disappointed not to be attending E School which had, until after the commencement of this hearing, been proposed by the father.

20. I am otherwise advised by Counsel for the father that he wishes to pursue his Initiating Application and seeks final orders in terms of that application. On that basis I will otherwise dismiss the interim proceedings and refer the matter to the pool of cases awaiting allocation to a judicial docket in due course.

21. The mother seeks an order that the father pay her costs on an indemnity basis. She says those costs amount to $7936. Those costs are made up of $4936 for her solicitor and $1500 each day for Counsel. The mother has signed a Cost Agreement and I have been provided with a copy of that Agreement.

22. Although I had not delivered my reasons or pronounced any orders, in order to avoid the costs of a further day of hearing both parties made submissions in relation to the question of costs. It is the mother’s case that the father has once again withdrawn his application for interim residence orders but more significantly withdrew his application that the child should attend E School in circumstances where the mother had agreed to his choice of school and the dispute was limited to, on the father’s case, the payment of $1200.

23. Counsel for the father on the other hand submitted that his client should not be required to pay the costs, that it was not his fault that the matter was not reached until late the first day necessitating a further day and that in any event he could not afford to pay costs.

24. The general rule is that each party should bear their own costs. However the Court may make an order for costs if it is of the opinion that there are circumstances which would justify an order for costs (s 117(2)). The matters to which the Court must have regard in so far as they are relevant to the particular case are set out in s 117(2A) of the Act. Those matters are as follows:

The financial circumstances of the parties:

1. The mother in this case is not in employment or in receipt of any income. She is a full time mother of three young children and the primary carer for the child the subject of these proceedings. As I have previously referred to she has been diagnosed and is undergoing treatment for breast cancer. The cost of these proceedings would in all of the circumstances be likely to significantly disadvantage the mother.

2. The father initially put his case on the basis that he would pay the school fees for the child at E School which he estimated to be $8500 per annum. He withdrew his application that the child attend E School on the basis that as the child would not be living with him he could not afford to pay those fees. I have some difficulty with that submission on the basis that if the child was living with him he would be paying significantly more to support the child than he is currently paying by way of child support and unlikely in the circumstances to receive any child support from the mother. 

3. It is now submitted that as he is currently unemployed he cannot afford to meet an order for costs. However, it was also submitted on the father’s behalf that he has already attended a number of job interviews and his prospects of obtaining employment are very good. I also have regard for the fact that if the father’s application had succeeded he would have no doubt been required to pay at least one school term fees if not more to secure the child’s enrolment at E School which was clearly his case until he abandoned his application.

4. I am satisfied that in all the circumstances the father’s financial circumstances would not preclude me making an order for costs in the mother’s favour.

Legal Aid:

1. Neither party in this case in is receipt of legal aid.

Conduct of the parties to the proceedings and other circumstances:

1. The mother refers in some detail to the father’s previous applications and his conduct of those proceedings and more particularly that he has made two previous applications for the child to live with him, neither of which he has pursued.

2. In my view the history of this matter is relevant when viewed in the context of the father’s conduct of the present proceedings. The father has again withdrawn his interim application for the child to live with him but even more importantly, in circumstances where the ambit of the dispute was limited to who would be responsible for the ancillary costs of the child’s attendance at the school of the father’s choice, has withdrawn his application that the child attend his school of choice.

3. Counsel for the mother referred me to correspondence passing between the father and mother’s respective solicitors and in particular the letter dated 24 June 2012 in which the mother makes clear her instructions that she will agree to the child attending E School subject to the father meeting all expenses with respect to his attendance at the school. The father should have been under no illusions as to the nature of the dispute when he instituted these proceedings and when he proceeded with the matter before me. The dispute was in relation to whether the mother should be required to pay the ancillary expenses.

4. Having insisted that the child should attend E School and being highly critical of the mother for not acceding to his application once the case had commenced he abandoned that application on the basis that he could not afford it unless the child is living with him. I have already indicated that I have some reservations about this proposition given that the child is presently living with the mother for the majority of the time and the father only pays $160 per month by way of child support. And significantly in terms of the manner in which the father has conducted these proceedings it was not until the second day of the hearing that he put his case on this basis. Until that time his application was put on the basis that the child should attend E School not withstanding that he was not pursuing his interim application for the child to live with him. As I have also previously mentioned there was also no suggestion until faced with the mother’s application for costs that he was not in employment, significant evidence in so far as his case was put on the basis that he would be paying for the child’s tuition and in circumstances where Counsel for the husband had submitted that the mother’s choice of school might be inconvenient given his work commitments.

Whether the proceedings were necessitated by the failure of a party to comply with previous orders

1. The proceedings were not in this case necessitated by the failure of either party to comply with previous orders.

Wholly unsuccessful

1. Not only did the father in this case withdraw his interim application he then unsuccessfully opposed the mother’s choice of school on what I consider to be grounds that were in all of the circumstances without merit.

Whether either party has made an offer in writing to the other party to settle the proceedings

1. Neither of the parties has made an offer in writing to settle the matter.

Indemnity Costs

1. l am satisfied that there are circumstances that justify making an order for costs in this case. The rule is that unless there are exceptional circumstances an order for costs should be made on a party/party basis. Sheppard J in Colgate- Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248 set out in some detail the circumstances that might give rise to an order for indemnity costs. Those circumstances were summarised by Holden J in Munday v Bowman (1997) FLC 92-784 at page 84,660 as follows:

   (a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397).

   (b) Making allegations of fraud, knowing them to be false, and the
   making of irrelevant allegations of fraud (see Fountain Selected
   Meats (Sales) Pty. Ltd. (supra)).

   (c) Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v. Keeprite
   Australia Pty. Ltd (unreported, Federal Court, 3 May 1991)).

   (d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v. Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)).

   (e) An imprudent refusal of an offer to compromise.

1. These examples fit well with the circumstances of this case and in particular (a), (c) and (d). Knowing well the mother’s position the father initiated proceedings and put his case on the basis that the child should attend E School, that he would meet the fees for his attendance at the school and the mother should meet the ancillary expenses. Having abandoned his interim application for the child to live with him he proceeded with his application that the child should attend E School, that he would pay the fees and that the mother should pay the ancillary expenses, and then abandoned his case on the basis that he could not afford to pay those fees unless the child was living with him. He also submitted notwithstanding having abandoned his case that the child should attend E School that the child should attend his choice of secondary schools rather than the mother’s preferred option because it would be more convenient given his work commitments. This was in circumstances where he had not disclosed to the Court that he was unemployed.

2. In all of the circumstances I propose to accede to the mother’s application that the father pay her costs on an indemnity basis. Pursuant to Rule 19.18 of the Family Law Rules 2004 I propose to fix those costs in the sum of $7936 as sought by the mother. Counsel for the father did not make any submissions with respect to the quantum of those costs and they would in all of the circumstances of this case appear to be reasonable. Although there may be some pressure on the mother to pay her costs having regard to the fact that the father is currently unemployed but it is submitted that his prospects for obtaining employment are good I propose to give him 3 months to pay those costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 30 January 2013.

Associate: 

Date:  30 January 2013