England and Harrisson (No. 3)

Case [2021] FamCA 373

FAMILY COURT OF AUSTRALIA

England & Harrisson (No. 3) [2021] FamCA 373

File number(s): SYC 5095 of 2020
Judgment of: ALTOBELLI J
Date of judgment: 8 June 2021
Catchwords: FAMILY LAW – COSTS – interim costs application – alleged family violence – costs reserved pending final determination.   
Legislation:

Evidence Act 1995 (Cth) s 135

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 19.18

Cases cited:

Bhatt & Acharya (Costs) [2017] FamCAFC 71

England & Harrisson [2020] FamCA 1083

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

In the Marriage of I & I (No. 2) (1995) FLC 92-625; [1995] FamCA 80

Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116

Lenova & Lenova (Costs) [2011] FamCAFC 141

Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157

Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Phillips & Hansford [2020] FamCAFC 28
Number of paragraphs: 41
Date of last submission/s: 10 March 2021
Date of hearing: By way of written submissions
Place: Sydney
Solicitor for the Applicant: Tiyce & Lawyers
Solicitor for the Respondent: Holmes Donnelly & Co Solicitors

ORDERS

SYC 5095 of 2020
BETWEEN:

MR HARRISSON

Applicant
AND:

MS ENGLAND

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

8 JUNE 2021

THE COURT ORDERS THAT:

1.The husband’s costs in respect of the Affidavit of Ms B filed on 27 October 2020 and struck out on 18 December 2020 be reserved for determination at the conclusion of these proceedings.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

ALTOBELLI J:

  1. These reasons for judgment concern an application brought by the father in his Application in a Case filed 13 January 2021 in respect of costs of and incidental to interim proceedings that were heard before me on 9 December 2020.

    BACKGROUND

  2. These costs proceedings are situated in the context of parenting proceedings between the parties (‘the substantive proceedings’). The father is the Applicant in these costs proceedings and the Respondent in the substantive proceedings. The mother is the Respondent in these costs proceedings and the Applicant in the substantive proceedings.

  3. The substantive proceedings concern a two and a half year old child, X. There are allegations of family violence raised by both parties against the other.

  4. On 27 October 2020,…

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England and Harrisson (No. 3) [2021] FamCA 373
Case
[2021] FamCA 373
Decision Date

CaseChat Overview and Summary

In *England and Harrisson (No. 3)*, Altobelli J considered an application by the father for costs arising from interim proceedings in a parenting dispute. The substantive proceedings involved allegations of family violence by both parties concerning their two-and-a-half-year-old child. The specific issue that led to the costs application was the mother's filing of an affidavit from the father's former wife, which the father sought to have struck out.

The court was required to determine whether the father should be awarded costs in relation to the mother's application to adduce the affidavit evidence, which was ultimately struck out by the court. The father argued that the mother's actions were not child-focused and were intended to cause him emotional harm. The court also considered the general principles governing costs in family law proceedings, particularly section 117 of the *Family Law Act 1975* (Cth), which allows for costs orders where circumstances justify it, and the presumption that parties bear their own costs.

Altobelli J found that the father's submission regarding the mother's intent was not accepted and that the circumstances did not warrant costs being awarded on an indemnity basis. The judge reasoned that it was not appropriate to make a costs order against the mother at that interlocutory stage. The court concluded that the question of whether the mother should pay the father's costs related to the affidavit and its interim hearing should be reserved for determination by the trial judge at the conclusion of the substantive proceedings. This approach would allow the trial judge to assess the merits of the mother's case, including her family violence claims, and the reasonableness of her actions in filing the affidavit within the context of the totality of the evidence.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The husband’s costs in respect of the Affidavit of Ms B filed on 27 October 2020 and struck out on 18 December 2020 be reserved for determination at the conclusion of these proceedings.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

Background

Background to the litigation

These reasons for judgment concern an application brought by the father in his Application in a Case filed 13 January 2021 in respect of costs of and incidental to interim proceedings that were heard before me on 9 December 2020.BACKGROUND These costs proceedings are situated in the context of parenting proceedings between the parties (‘the substantive proceedings’). The father is the Applicant in these costs proceedings and the Respondent in the substantive proceedings. The mother is the Respondent in these costs proceedings and the Applicant in the substantive proceedings. The substantive proceedings concern a two and a half year old child, X. There are allegations of family violence raised by both parties against the other. On 27 October 2020, the mother filed an Affidavit sworn by Ms B, the former wife of the father in this case. In her Affidavit, she deposed to family violence which she says the father perpetrated throughout their relationship until their separation in 2011. The father objected to the Affidavit on the basis of s 135 of the Evidence Act 1995 (Cth) and the matter came before me for interim hearing on 9 December 2020 to determine the discrete issue of the admissibility of Ms B’s Affidavit. I ultimately determined that the probative value of Ms B’s Affidavit was outweighed by the danger that the evidence would cause or result in an undue waste of time. Accordingly, I made orders on 18 December 2020 for the Affidavit to be struck out and removed from the Court record. I refer to my judgment, reported as England & Harrisson [2020] FamCA 1083, which sets out my reasons for striking out the Affidavit. The present application for costs concerns the filing of, and interim hearing relating to, that Affidavit.THE PRESENT APPLICATION On receipt of the father’s costs application, Registrar Maitland made orders that each party file and serve written submissions with respect to the same. The father has subsequently filed, and I have had regard to, the following documents:(a)Application in a Case filed 13 January 2021;(b)Affidavit of the father filed 13 January 2021; and(c)Written Submissions filed 10 March 2021. The mother sought to rely upon:(a)Affidavit of the father filed 1 September 2020;(b)Affidavit of the mother filed 4 November 2020;(c)Single Expert Report prepared by Dr D dated 2 December 2020;(d)Financial Statement of the father filed 4 November 2020;(e)Affidavit of the father filed 13 January 2021;(f)Response to an Application in a Case filed 17 February 2021;(g)Affidavit of the mother filed 17 February 2021;(h)Amended Financial Statement of the mother filed 17 February 2021;(i)Written Submissions filed 10 March 2021; and(j)Tender bundle, marked as exhibit R1.LEGAL PRINCIPLES The law relating to costs in family law proceedings is well settled and is set out in detail in the Full Court decision of Parke & The Estate of the Late A Parke (2016) FLC 93-748. An application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (‘the Act’). Section 117(1) of the Act sets out the general presumption that each party to the proceedings shall bear their own costs. This is subject to s 117(2), which provides that: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 the court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The father submitted that the mother’s action in seeking to adduce the evidence of Ms B was not child-focused and was calculated to cause emotional harm by, in effect, “reach[ing] into [his] past”. I do not accept this submission and I am not satisfied that the circumstances of this case are so exceptional so as to warrant costs to be paid on an indemnity basis.CONCLUSION I am of the view that it is not appropriate to make a costs order against the mother at this stage of the proceedings. As such, I reserve the question of whether the mother ought to pay the father’s costs of and incidental to the filing and interim hearing relating to the Affidavit of Ms B to be determined by the trial judge at the conclusion of the substantive proceedings. The learned trial judge will be in a much better position that I am to ascertain the merits or otherwise of the mother’s case based on family violence. It is only in the context of the totality of the evidence that the Court will be able to understand the reasonableness and appropriateness of the mother’s actions in filing the Affidavit.

Ratio Decidendi

Legal Principle Established

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