Edlund and Edlund

[2015] FamCA 5

FAMILY COURT OF AUSTRALIA

EDLUND & EDLUND [2015] FamCA 5

FAMILY LAW – COSTS – where the father seeks his costs of and incidental to the proceedings – where costs are sought for the father’s solicitor-client costs – where the father was self-represented at trial – where the father seeks that the mother pay the costs of the single expert – where the father seeks costs for the supervision centre – where the father alleges that the mother made spurious allegations of child sexual abuse – where the father alleges that the mother contravened orders of the court – where the father’s application for costs is dismissed.

Family Law Act 1975 (Cth) s 117
APPLICANT:	Mr Edlund

RESPONDENT: Ms Edlund

FILE NUMBER: SYC 569 of 2013

DATE DELIVERED: 14 January 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: Dealt with by written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Edlund on his own behalf

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The father’s Application in a Case filed 21 August 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Edlund & Edlund 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 SYDNEY

FILE NUMBER: SYC 569 of 2013

Mr Edlund

Applicant

And

Ms Edlund

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. On 25 July 2014 I delivered judgment and made parenting orders after a trial which extended over eight days.  As I noted in my reasons for judgment the father, Mr Edlund, unnecessarily complicated and extended those proceedings by the volume and nature of the material which he presented by way of written evidence and submissions. 

2. On 21 August 2014 the father filed an Application in a Case by which he sought the following orders:

   1.That the mother pay the father’s solicitor-client costs reserved of and incidental to these proceedings:

   (i)     to the sum of $65,579.45

   (ii)    or as a sum determined by the Court

   such payment pursuant to (i) and (ii) above be made within sixty (60) days of the date of such quantified order.

   2.That the mother pay the father’s costs reserved of the appointed Single Expert, Dr [C] (Medico-Legal Report) and incidental to these proceedings:-

   (i)     to the sum of $6,000.00

   (ii)    or as a sum determined by the Court

   such payment pursuant to (i) and (ii) above be made within sixty (60) days of the date of such quantified order.

   3.That the mother pay the father’s costs reserved of the private supervision by [P Children’s Services] and incidental to these proceedings:-

   (i)     to the sum of $5,188.50

   (ii)    or as a sum determined by the Court

   such payment pursuant to (i) and (ii) above be made within sixty (60) days of the date of such quantified order.

   4.That any response to an Application in a Case or Cross Application of the mother as to costs be dismissed.

3. The father supported this Application by an affidavit which he swore on 21 August 2014.  The contents of this affidavit maintained the florid character of the father’s evidence and submissions at trial. 

4. The basis of the father’s claim that the mother pay these sums to him, insofar as it is possible to extract the reasons from his affidavits, appeared to be as follows:

   ·his then solicitor put the mother on notice prior to the commencement of the proceedings that, if she “continues to be deliberately obstructive and we are forced to commence urgent proceedings” he would seek costs.

   ·costs were reserved during the proceedings.

   ·the mother made “spurious abuse, assault allegations, false statements and misleading evidence of family violence …”.

   ·the mother made “spurious child sexual abuse allegations”.

   ·the mother “hired an incited third party fictitious witness Ms [M] to make spurious child sexual abuse allegations”.

   ·the maternal grandmother made “spurious child sexual abuse allegations”.

   ·a barrister, Ms G, held a conference with the father and his then solicitor but later appeared for the mother at an interim hearing.

   ·the mother contravened an order of the court made on 31 May 2013.

   ·the mother contravened a parenting plan dated 16 April 2012 “repeatedly”.

5. At the outset it can be observed that the father now attempts to rehash and relitigate issues which were dealt with in my reasons for judgment of 25 July 2014.  Issues such as the involvement of barrister Ms G with both parties to the proceedings, for example, assume no greater significance for present purposes than was the case at trial.

Approach to these proceedings

1. Applications for costs are determined in accordance with section 117 of the Family Law Act 1975 (Cth) (“the Act”), which provides relevantly as follows:

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

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

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

2. The father identified no source of power which would enable the Court to order that the mother pay the costs of supervision of the child Y’s time with him, in the context of the present proceedings.  In making this observation, I do not suggest that there is any valid reason why that responsibility should fall to the mother. 

Consideration

1. I will deal with the merits of the father’s Application for costs within the parameters of section 117, rather than in accordance with the agenda which he purported to set by the florid material contained in his affidavit of 21 August 2014. Notably the father quoted selectively, and to his apparently perceived advantage, from the report of the single expert Dr C and my reasons for judgment.

2. I have no knowledge of the financial circumstances of either party.  The father deposed that he was unable to afford legal representation during the trial but, apparently, he incurred legal costs in an amount of $65,579.45 between 24 April 2012 and 13 May 2013.  I am unaware whether he has paid these costs.

3. The mother was in receipt of a grant of legal aid at an earlier stage in the proceedings.  The father complained of inappropriate professional conduct on the part of a solicitor who once acted for the mother pursuant to this grant of legal aid.  In my reasons for judgment I found as follows in relation to this suggestion on the part of the father:

   85.The father took exception to the fact that [Mr S], a solicitor, who once acted for the mother, wrote to him on 24 October 2012 and raised issues concerning settlement of property.  He suggested that [Mr S] deliberately misused a grant of legal aid “for a family dispute conference” “for [the mother’s] personal benefit”.  In fact, the letter which set out the terms of the grant of legal aid (Exhibit 2) stated:  “Aid is granted for representation at a legal aid family law conference for property and children’s matters”.  Accordingly, there was nothing at all improper or sinister in [Mr S’s] writing of this letter.  Nonetheless, the father was prepared to state in his oral evidence:  “It is clearly a breach of the Legal Profession Act for her solicitor to use a grant of legal aid preparing for property”.  He said also:  “I have not complained about [Mr S] yet”.

4. For the purposes of the present proceedings, the father again strenuously advanced the proposition that the mother made “spurious allegations” that he sexually abused the parties’ child Y, (“the child”).  I found that to the requisite standard, the father did not sexually abuse the child. The father now appears to have magnified his position in relation to the issue of sexual abuse to an allegation of malicious intent on the part of the mother.

5. In his affidavit the father deposed to “malicious intent” on the part of the mother and a suggestion that she “knowingly made false (spurious) child sexual abuse allegations, false statements and misleading evidence in the proceedings”.  He deposed that the mother “hired and incited third party fictitious witnesses, Ms [M] to make spurious child sexual abuse allegations against the father”.

6. For the purposes of his present Application, the father apparently chooses to ignore my findings as to his role in the creation of the toxic dynamics between himself and the mother.  I found that he made unwarranted allegations that the mother physically abused the child.  My conclusion in respect of his allegations of physical abuse of the child by the mother was as follows:

   58.Is thus apparent that the father made strenuous efforts to establish that the mother subjected the child to physical abuse.  In my view, he leapt to sinister conclusions on the basis of flimsy material on several occasions.  I refer below to Dr [C’s] analysis of this propensity on the part of the father.  I find to the requisite standard that the mother did not physically abuse [the child].

7. Dr C gave this opinion of the dynamics which developed between the parties:

   75.………

   He said in response to questions from the father:  “I think it is a tit for tat situation, with you making allegations to counter her allegations.  I think the mother’s anxiety is fear of losing the child, but she found you overbearing and it has gradually grown from there.  That has led to excessive questioning.  Unfortunately you have been doing the same with physical abuse allegations.  I think the two of you are anxious and obsessional … I think you and [the mother] are now mirroring each other and you run the risk of harming [the child] … I see the two of you as fine parents but the throwing of allegations is damaging.  You need to move on.  I am concerned that there could be more allegations from both of you, that you cannot put [the child’s] needs first … If you and the mother keep pathologising, you will damage [the child].”

   ……..

8. The father’s application at trial was for an order that the child live permanently with him.  He failed to achieve that outcome but deluged the mother and the Court with a huge amount of material, by way of written evidence and submissions.  Large swathes of this material were inflammatory, argumentative, self-serving and irrelevant to the issues before the Court. 

9. For these reasons, I find no merit in the father’s Application that the mother pay his costs and the whole of the fees of the single expert.  I refuse to traverse again the issues raised by the father in his affidavit, particularly in relation to barrister Ms G and his ill-conceived allegations of a breach of a parenting plan by the mother.  I will dismiss the father’s Application in a Case filed on 21 August 2014.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 14 January 2015.

Associate: 

Date:  14 January 2015