ELDRIDGE & ELDRIDGE (No.3)
[2020] FCCA 2689
•28 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELDRIDGE & ELDRIDGE (No.3) | [2020] FCCA 2689 |
| Catchwords: FAMILY LAW – Costs – application dismissed – father to pay his share of the Independent Children’s Lawyer’s costs. |
| Legislation: Family Law Act1975, s.117 |
| Cases cited: Eldridge & Eldridge [2017] FCCA 822 |
| Applicant: | MR ELDRIDGE |
| Respondent: | MS ELDRIDGE |
| File Number: | TVC 229 of 2017 |
| Judgment of: | Judge Boyle |
| Hearing date: | 10 February 2020 |
| Date of Last Submission: | 10 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2020 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Respondent: | Direct brief |
| Counsel for the Independent Children's Lawyer: | Ms Rebehy |
| Solicitors for the Independent Children's Lawyer: | Shedden & Associates |
ORDERS
The mother’s application for costs is dismissed.
The mother’s application for her costs of the costs application is dismissed.
The father’s application for his costs of the costs application is dismissed.
The father shall pay one half of the Independent Children’s Lawyer’s costs, being the sum of $7,599, as directed by the Legal Aid Commission of New South Wales within 8 months.
The Independent Children’s Lawyer’s application for their costs against the mother is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Eldridge & Eldridge (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
TVC 229 of 2017
| MR ELDRIDGE |
Applicant
And
| MS ELDRIDGE |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns a costs application filed by the mother following the conclusion of a contested parenting hearing conducted over 4 days, concluding on 21 March 2019. Final reasons for judgment were delivered on 19 August 2019.[1]
[1] Eldridge & Eldridge (No.2) [2019] FCCA 2280
The mother filed an application in a case on 5 September 2019 seeking orders:
a)That the father pay the costs of her barristers fees at the final hearing in the sum of $37,840;
b)That the father pay the costs the costs application; and
c)That the father pay the entirety of the Independent Children’s Lawyer’s Costs.
The father filed his response on 25 September 2019 seeking that:
a)The mother’s application for costs be dismissed;
b)The mother pay his costs of the costs application.
The matter was listed for mention on 18 November 2019 where the parties were ordered to file and serve updating affidavits and financial statements and file written submissions in relation to costs.
The matter came before me on 10 February 2020 in relation to a hearing of the costs application.
The ICL made submissions in relation to their costs at the conclusion of the final hearing seeking the sum of $7,599 from each party.
Background
By application filed 3 March 2017 the father commenced parenting proceedings in relation to the 2 children of the relationship, X and Y.
The father’s application at the final hearing was in essence that the mother return the children to the Town G area, and that the children live in an equal time arrangement between the parties. If the mother was not prepared to return to live in Town G, he sought that the children live with him. He also sought orders for the parents to have equal shared parental responsibility.
The mother sought that she have sole parental responsibility for the children, that she be permitted to live with the children within a 300 km radius of Sydney airport, and that time between the children and the father occur only at a supervised contact centre.
The Independent Children’s Lawyer sought orders broadly in agreement with the mother’s application.
On 19 August 2019 I delivered my final reasons for judgment in the matter and made orders inter alia, that:
a)the mother have sole parental responsibility for the children;
b)the children live with mother within a 300 km radius of Sydney airport;
c)the children spend supervised time with the father for one day for 2 to 6 hours in each of the school term holidays and for one day in each school term.
Documents relied on
The parties each filed case outline documents identifying the documents they relied on.
The Law
Pursuant to section 117 of the Family Law Act:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, 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), (5) and (6) 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.
(a) Financial circumstances of each of the parties to the proceedings
The mother has re-partnered with Mr L. They have been in a relationship for the past 3 years, and have 2 infant children. The mother is the full-time carer of her four children, aged between one and seven. She is not in paid employment. She has limited assets as outlined in her financial statement being approximately $1,000 in cash $3,000 in shares, a motor vehicle valued at $28,000 and superannuation of $151,424.[2]
[2] Financial statement of Ms Eldridge, filed 31 January 2020, pages 3-8.
The mother owes her mother, Ms GG, $28,000. She owes her father $46,000. In addition she has credit card debts of $16,000.[3]
[3] Financial statement of Ms Eldridge, filed 31 January 2020, pages 9-10.
The father is assessed to pay the mother child support in the statutory minimum amount of $35 per month. The father is $741 in arrears.[4]
[4] Affidavit of Ms Eldridge, filed 31 January 2020, paragraph 41.
The mother and the children are financially supported by Mr L. He had a serious motor vehicle accident in early 2019, and is currently in receipt of workers compensation. Mr L’s evidence is that his capacity to return to the workforce is uncertain.[5]
[5] Affidavit of Mr L, filed 31 January 2020, paragraph 8.
The father is self-employed as a tradesman and deposes to receiving income of $450 per week from that work. He states that his expenses are approximately $1,000 per week.[6]
[6] Financial statement of Mr Eldridge, filed 30 January 2020, Part B.
The father owns a property at HH Street in Town G valued at approximately $360,000. The mother states that this property has a value of approximately $400,000-$450,000. Given the nature of the available evidence, I cannot make a finding about this disparity other than to say the property is worth at least $360,000. The home is subject to a mortgage of $79,000.[7]
[7] Financial statement of Mr Eldridge, filed 30 January 2020, pages 6, 9.
The father owns a car worth approximately $1,000, household contents of approximately $5,000, a boat valued at approximately $4,400 and superannuation of $18,305.[8]
[8] Financial statement of Mr Eldridge, filed 30 January 2020, pages 7-8.
The father owes his partner $7,157 and has a debt to the child support agency of $1,082.[9]
[9] Financial statement of Mr Eldridge, filed 30 January 2020, pages 9-10.
The father submits that in addition to these liabilities he incurs a cost of $7,930 per year to effect the supervised contact with the children pursuant to the final orders.
The mother submits that the father has minimised his financial position and has not been full and frank in his disclosure. I am not in a position to make findings on this issue on the evidence available.
Neither party is in a strong financial position, however, the father’s position is superior to the mother.
(b) Whether any party to the proceedings is in receipt of assistance by way of legal aid
Not relevant.
(c) The conduct of the parties to the proceedings
The mother submits that the father’s conduct in the proceedings were unreasonable to the extent that it justifies making an order for costs.
She submits that the father maintained an application on the basis that his conduct posed no risk to the children, failed to make appropriate concessions in relation to facts relating to risk, and minimised such matters. In particular the father’s attitude towards consumption of alcohol, and family violence during the relationship did him no credit. Findings adverse to the father in both areas were made in the final judgment. The orders reflect those findings about the father’s parenting capacity, and risk to the children.
The mother criticises the father for having initiated the proceedings, submitting that he persisted with an unmeritorious application throughout the proceedings. She submits that the interim decision and findings made by Judge Demack, and the contents of the family report would have made the unreasonableness of the father’s position obvious to him.
The father was entitled to commence parenting proceedings. The proceedings were brought in the circumstances of the mother unilaterally relocating the children to the Region H of New South Wales from Town G. While the interim decision of Judge Demack contained criticisms of the father, the findings were limited by the nature of interim proceedings. While the family report is an important piece of evidence, it was untested, and clearly not determinative of the matter.
The father was unrepresented from May 2017 date. He states that while he did have some assistance preparing his documents he was otherwise self represented. He did not have the benefit of legal representation in the lead up to the final hearing. The father has a hearing difficulty, for which he uses a hearing aid. The father has difficulty with reading and writing. Although he did his best, he was an unsophisticated litigant who was at times assisted at the bar table.
The father’s case may have been weak, however, I do not find that his pursuit of the litigation demonstrated conduct so unreasonable as to justify an order for costs.
The manner in which he conducted the proceedings was not such as to give rise to orders for costs against him.
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.
Not relevant.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
The father’s application throughout the proceedings was for the children to live in an equal time arrangement with the parties, and an order for equal shared parental responsibility. The father was wholly unsuccessful in the proceedings. This alone is not in my view a sufficient basis for there to be an order for costs in the circumstances of this matter.
(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
Not relevant.
Costs
The general rule is that each party bears their own costs. The court has a wide discretion to order cost as the court considers just. For the reasons discussed above, I do not find that the circumstances of this case warrant a departure from the ordinary rule that each party bear their own costs. I propose dismissing the mother’s application for costs.
The father sought orders that the mother remove the caveat over his home. I have no particular evidence about that, and it was not addressed by the mother. I note that the mother does not have, so far as the evidence reveals, a caveatable interest. The father can take steps through the state courts if that is necessary.
Independent children’s lawyer’s costs
Section 117 states that:
Costs of independent children's lawyer
(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
As discussed earlier in this judgment I have found that the mother has limited financial resources. She has significant costs, four very young children, and her partner is currently on workers compensation with an uncertain future regarding his employment. I find that the mother would suffer financial hardship if the Court would require her to pay the Independent Children’s Lawyer’s costs, modest though those costs may be.
The father is in a superior financial position to the mother and in the circumstances of this case I find that is appropriate that the father should bear his half of the ICL’s costs. I do not accept that such an order would be unduly onerous on the father or cause him to suffer financial hardship given the amount sought is $7,599.
Costs of the costs application
The mother seeks her costs of this cost application in the sum estimated to be between $2,500 and $5,000. The father seeks that’s the mother’s costs application be dismissed and for orders that the mother pay his costs of this application.
I have discussed earlier in this judgment the relevant parts of section 117 that need not be repeated. I propose dismissing the mother’s cost application in relation to the substantive proceedings and I do not find that either parties conduct in relation to this application was unreasonable.
The father is a self represented litigant and does not identify any costs which could be properly sought by him.
I propose dismissing both parties applications for the costs of the cost application.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Boyle
Associate:
Date: 28 September 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Jurisdiction
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