Farquar and Farquar (No 2)

[2009] FamCA 1195

FAMILY COURT OF AUSTRALIA

FARQUAR & FARQUAR (NO. 2) [2009] FamCA 1195

FAMILY LAW – COSTS – mother claims costs against father – father unrepresented – financial position of parties – s117 considerations – application granted – costs on the scale

APPLICANT: Mr Farquar

RESPONDENT: Ms Farquar

INDEPENDENT CHILDREN’S LAWYER: Ms Orwin

FILE NUMBER: DNC 431 of 07

DATE DELIVERED: 11 August 2009

PLACE DELIVERED: Darwin

PLACE HEARD: 1 April 2009

JUDGMENT OF: Strickland J

HEARING DATE: 11 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Holtham

SOLICITOR FOR THE RESPONDENT: Holtham & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Orwin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Margaret Orwin Barrister

Orders

1. That the father pay to the solicitors for the mother on behalf of the mother the sum of FIVE THOUSAND DOLLARS [$5,000.00] by way of costs.

2. That the father pay the said sum of FIVE THOUSAND DOLLARS [$5,000.00] as follows:

   a.   TWO THOUSAND FIVE HUNDRED DOLLARS [$2,500.00] within 12 months of the date hereof; and

   b.   the balance within 18 months of the date hereof.

3. That all applications be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER:  DNC 431 of 2007

MR FARQUAR

Applicant

And

MS FARQUAR

Respondent

EX TEMPORE REASONS

1. Today I have before me an application for costs, indeed an oral application for costs by the mother against the father.  The application is opposed.

2. The application is supported by an affidavit tendered today by the mother’s solicitor, Ms Holtham, and annexed to that affidavit is a schedule of the costs sought. Originally they totalled $8523.35, however that has been amended to $7500, as a result of the circumstance that on 7 November 2008, I made an order for costs in relation to the hearing which took place on 4 September 2008 and unfortunately some of the costs associated with that hearing were included in this schedule.  With Ms Holtham I have identified the double-counting so to speak and as a result the amount of costs now claimed is less by approximately $1000.

3. Briefly, these current proceedings commenced in July 2007 with an application by the father.  There had been extensive proceedings before that commencing in 1999 and importantly there were final orders made on 19 June 2000.  Subsequently there were applications to vary those orders in the Federal Magistrates Court.  Those applications were dismissed and thus as I understand it as at the commencement of these proceedings in July 2007 the formal order in place was still the order of 19 June 2000, which provided in relation to the child who has been the subject of these proceedings, that the child live with her father and spend time with her mother.

4. The application filed by the father on 30 July 2007 was that contact between the mother and the child be stopped.  There were other orders sought in relation to other children but I do not need to canvas those.  He has also sought leave of the court to leave the Northern Territory, as he described it in the application, for good with the child.

5. In short summary, the child had gone to stay with her mother pursuant to the existing order and she did not return to her father.  That was then the catalyst to the application I have just referred to.

6. Importantly, criminal proceedings arose out of an incident or incidents that occurred at that time as well relating to where the child was at the time and the proposed handover or hand-back to her father.  I do not propose to go into any of the detail of those criminal proceedings save and except to say they were serious proceedings, there were allegations of assault by the father including allegations of assault by him on the child.  Those proceedings were hotly defended by the father and they have had an impact upon these proceedings, which I will come to in a moment.

7. I should mention also that apart from allegations of assault, there were also certain driving offences with which the father was charged and the relevance of that will become clear in a moment in those reasons.

8. In any event as I say the proceedings commenced in that way in this court in July 2007. There were other proceedings along the way including contravention proceedings instituted by the father, but ultimately the matter came before me on the first day of trial in June 2008.  By that time the father had filed an amended application in which he sought that the previous orders of 19 June 2000 remain in place.  He also referred to orders of 4 June 2001.  I could not find those quickly but my reading of the file is that really it was the orders of 19 June 2000 which were the relevant orders.

9. The effect of the father’s application was that he was seeking an order that the child live with him.  The mother had filed a response to the initial application on 23 August 2007 wherein the mother sought that all previous orders be discharged, the child live with her, she have sole parenting responsibility and the child spend time with the father on terms as agreed between the parties or as otherwise ordered by this court.

10. Thus the issue was well and truly joined, namely where would the child live, with her father or her mother.  There were obviously other issues about parental responsibility and what time would be spent with the other parent, but the major issue clearly was with whom the child would live.

11. By the time of the first day of trial the criminal proceedings were well underway but they unfortunately had not been finalised.  Those proceedings clearly had an impact upon the proceedings in this court given that, as I say, they related to the occasion when the child stayed with her mother and did not return to her father, and that was the catalyst for the proceedings.  Nevertheless the first day of the trial was conducted.  There was no resolution and the matter was then listed for a conclusion hearing in September 2008.  By that time unfortunately the criminal proceedings had still not been determined and indeed as I recall, it was anticipated that they would not be heard in the Supreme Court of the Northern Territory until sometime into the New Year, being 2009.

12. Regardless of that circumstance, every effort was made by the parties and by me to see if we could still hear and finalise the issues in this court in relation to where the child should live, but unfortunately in the end result I determined that the proceedings in this court needed to be adjourned until after the conclusion of the criminal proceedings in the Supreme Court. 

13. In or about February 2009 the charges of assault were finalised by being withdrawn.  There were still though certain driving charges pending against the father and they were listed, as I understand it, for hearing in about June or July 2009. 

14. The matter came back before me on 1 April 2009 and as a result of the assault charges being finalised, I listed this matter for a conclusion hearing in either July or August.  I was not able to give a date at that time but I made orders designed to prepare the matter for that conclusion hearing, including the provision of an updated family assessment report.  I gave leave for the parties to file updated affidavits of evidence-in-chief.

15. At that time, despite the assault charges being finalised, the father was still pursuing his application that the child live with him, and the mother of course was still pursuing her application that the child live with her.

16. I subsequently was able to provide a date for the conclusion hearing and that was 10 August 2009.  The matter came before me again, or was listed before me again on 20 July 2009 by way of a compliance check cum directions hearing and I was told on that day that the parties had now reached agreement in relation to the final orders and those orders were supported by the Independent Children’s Lawyer.  I was provided with a minute of order and I was satisfied that the orders sought were in the best interests of the child.  With the consent of the parties I made those orders which finalised the proceedings in this court.  However Ms Holtham made an oral application for costs and that application was adjourned to 11 August.  I was told that the parties would be having discussions about that to see if that issue could be resolved as well.  But as is obvious it has not resolved and that application has proceeded today.

17. Now I turn to the application itself and in particular the affidavit in support of the application.

18. This is an application which of course is governed by s 117 of the Family Law Act and the relevant provisions of that section are as follows:

    (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 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) 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.

19. In terms of the factors that Ms Holtham has referred me to or upon which she relies, she specifically relies on sub-paragraph (e) and (f) or s 117(2A). In addition she has raised what she describes as issues of conduct which would all go, she says, to justify an order for costs. I will come to those in a moment.

20. In terms of sub-paragraph (e), Ms Holtham says that the father has been wholly unsuccessful given that his primary application all along has been that the child live with him and in that regard the father has been wholly unsuccessful. 

21. In response the father puts to me that if you compare the final order with the previous order there are some changes and he points to the injunctions which are part of the final order I made on 20 July, and he also says that he has been successful in having an order made that he is able to take the child out of the Territory subject to her wishes for the holiday, and there are some notations which he has been successful in obtaining, particularly in relation to being notified of any emergency which the child suffers.

22. The difficulty I have with the father’s submission about that is that the comparison is not between a previous order and the final order, the comparison in terms of whether the party is wholly unsuccessful or not is between the final order and the application that the party is making.  In that regard, as I said, the formal application before the court is the father’s amended initiating application of 13 September 2007 in which he sought that the previous orders remain in place and, as I say, in particular that the child live with him. Further, it is true that there are other orders in the final order which were not in the initial order made, but equally, and importantly, those issues, namely the injunctions and the notations, were not issues about which there was any dispute, as I understand it.  In that regard I point to the minute of order which was prepared by the Independent Children’s Lawyer and which comprised her proposals to resolve this matter way back in March 2008.  Those minutes are annexed to the affidavit of Ms Holtham, and when I look at the proposed order it includes, for example, the injunctions that are now contained in the final order and provides for the father to take the child out of Darwin for holidays upon giving notice to the other parent and subject to the wishes of the child.

23. Thus to my mind it is the case that the father has been wholly unsuccessful in the proceedings. 

24. The second factor relied upon by Ms Holtham is, as I have said, s 117(2A)(f), and in this regard Ms Holtham has annexed to her affidavit the relevant documents commencing from 14 March 2008 - which incidentally is the date from which the mother seeks costs. At that time, the Independent Children’s Lawyer put a proposal to both parties to settle this matter, the mother agreed to that proposal but the father did not.

25. Now the father in response to this says he has never seen this document.  I frankly find that hard to accept, and indeed I do not accept it.  It is a document which was clearly prepared for the purposes of a hearing before Burr J on 14 March 2008, and the father was present in court on that date.  Thus I am satisfied that the father well knew that this was the proposal on the table from the Independent Children’s Lawyer and the mother supported it, yet he refused to accept it.

26. In any event, importantly, and regardless of anything else, on 14 March 2008 the primary issue was still with whom the child would live and the father was pursuing his application that the child live with him.  That to me is the important issue in this case.

27. Ms Holtham says that there was another proposal made in writing subsequent to that.  She says in her affidavit that on 28 April 2009 the father came to her office and asked to speak with her.  He told her that he would agree to final orders on the basis that the child continue to spend time with her brothers on a regular basis.

28. Of course just reflecting on the timing of this, this was subsequent to the conclusion of the assault charges but also subsequent to the hearing before me on 1 April when the father was still pursuing his application that the child live with him.

29. In any event Ms Holtham sought instructions from her client and on 11 May forwarded a settlement proposal to the father and that is annexed to the affidavit.  It provided for the orders that the mother was seeking in relation to the child and provided a notation in relation to the child spending time with her brothers, which is apparently what the father was seeking.

30. Then on 21 May 2009 there was a meeting between the father and Ms Holtham.  Ms Holtham tells me in her affidavit that the father advised her that he did not agree to the proposed orders.  He wanted some specific defined time during the mid year and end of year holidays, presumably with the child, and importantly he would not be speaking with or having anything to do with the child until after June 2009 when he went to court for the driving offences.  He said that was pursuant to advice that he had received from his lawyer.  The father has repeated that before me today, namely that he has acted on the advice of a lawyer, an unnamed lawyer, in how he has conducted this case.

31. One of the issues of conduct that Ms Holtham raises with me is that the fact of the father indicating he would not speak with the child until after 17 June 2009.  Ms Holtham says the effect of that is that it obviously delayed the finalisation of this case but in the meantime the mother continued to incur costs associated with the preparation of the matter for the conclusion hearing.

32. I must say that I could not quite see in the schedule of costs presented where there were any significant costs incurred in that period of time by the mother.  In any event what the father says about that is that he had advice from my lawyer not to speak to the child because she was a proposed witness in relation to the driving charges.  Now I accept that, and thus I accept that the father was from that point of view justified in saying on 21 May that he would not be speaking with the child.  In these circumstances I do not consider that that aspect of the matter provides any justification to award costs in this case.

33. Next, the case was prepared for trial.  There was an affidavit filed by the father and an updated affidavit filed by the mother.  There was the updated report obtained. Thus all that work was undertaken. Then, on 9 July Ms Holtham tells me that she received an email from Ms Orwin, the independent children’s lawyer, which attached the orders that she would be seeking at the conclusion hearing. Ms Holtham obtained instructions from her client to agree to those orders. Then on 20 July 2009 Ms Holtham says, and I accept this, that she learnt for the first time that the father would agree without conditions to the orders proposed by Ms Orwin.  And so indeed those orders were made by consent on 20 July.

34. Ms Holtham says that there have been offers in writing to the father to settle the proceedings which he has not accepted and when compared with the final orders that were obtained the fact that he did not accept those offers as a justification for making an order for costs.  Now of course as Ms Holtham has recognised not all of those offers were in fact from the mother, and indeed the initial one was from the Independent Children’s Lawyer and so was the final one in July 2009.  However, Ms Holtham says that importantly her client agreed with the orders proposed by the Independent Children’s Lawyer and in that sense they can be considered as an offer of settlement from her to the father.  I accept that submission.

35. The fact of the matter is that wherever the proposal came from there were proposals put to the father which were endorsed by the mother and in the ultimate analysis the orders obtained and made by consent were either the same or not that much different from the orders that were proposed.

36. It is said, and I agree with this from my reading of all the documents along the way including family reports and the affidavits of the parties, that it was unlikely that in the circumstances that the father would succeed with his application that the child live with him.  Yet he persisted with that application, causing the mother to incur legal costs in meeting that application.

37. The other matter that Ms Holtham referred to was the husband’s affidavit material itself, and in particular his last affidavit, suggesting that it was not helpful to the court and indeed in many respects was not relevant.  Again I have to agree with that submission but I do not consider it is in the category of conduct which would justify an order for costs necessarily.  The father appeared for himself.  He tells me that he sought advice from an unnamed lawyer along the way but frankly it is apparent from the documents that he has filed that there has been no assistance from any lawyer in preparing those documents and he has prepared them himself.  Accordingly I make allowance for the fact that the father has appeared for himself in terms of assessing the value or otherwise, or the relevance or otherwise of his affidavit material.

38. Thus, in terms of a justification for a costs order, in my view justification can only be found in sub-paragraphs (e) or (f) of s 117(2A).

1. Before I conclude this aspect of my reasons, I am also obliged under s 117(2A)(a) to have regard to the financial circumstances of each of the parties to the proceedings. Now I am obliged to take those circumstances into account not only in determining the amount to be paid, if there is to be an amount to be paid, but also to take it into account in determining whether there is a justification for a costs order.

2. There is no affidavit that has been filed by the parties of recent times nor any updated statements of financial circumstances.  However I have been provided with information from the bar table by Ms Holtham on behalf of her client and also the father, which I accept.

3. Ms Holtham says that her client is a self-employed personal services provider.  She is not in a position to provide specific details of her financial circumstances because apparently she is meeting with her accountant as we speak to address those issues and presumably prepare her 2008/2009 income tax return. Now in normal circumstances that would create a difficulty but Ms Holtham has made the concession which overcomes that difficulty namely that in all respects her client’s financial position is superior to that of the father’s and she is paying and is able to pay and meet her legal costs.

4. Given that concession, I turn to the father’s financial circumstances as put to me.  He is currently receiving a NewStart Allowance which is $453.70 per fortnight.  He receives a remote living allowance of $18.20 per fortnight.  That totals $471.90 per fortnight.  He is receiving a NewStart Allowance, because of an injury that he has suffered, and he is due to have an operation in Sydney towards the end of this year.  It is unclear whether the father will be able to return to work or not as a result of that operation.  He is hopeful though of returning to work.  He is not receiving sickness benefits or a disability pension.  He is receiving NewStart Allowance and he tells me, and I accept this, that that is the category into which Centrelink have placed him given the circumstances of the surgery and the fact that the result of it is unknown.  The father has said, and I accept this, that he would expect to be on this NewStart Allowance for some time because there will be the operation, there will be a recovery period, and there will be an assessment of the success or otherwise of it.  Thus it will be sometime before he considers he will be in a position to return to work.

5. In terms of returning to work he was previously employed by in a trade.  Unfortunately, he tells me that he will not necessarily be able to return to work with his previous employer because the job that he was actually working on, or rather the contract has been lost.  Thus with whom he will work in the future is unclear, but he has always expressed confidence that he will be able to obtain work and I accept that.  He strikes me as the sort of person who would look for work and obtain work where he can.

6. Ms Holtham has reminded me that in material that is before the court when he was working he was earning up to $240 a day.  All that tells me though is that he has the prospect of earning a relatively significant income when he returns to work.  The issue though is will he work, and we do not know that.  I cannot make any predictions about that.  In the meantime I proceed on the basis obviously that his income now and for sometime will be this NewStart Allowance.

7. I also note that he has $15 deducted from that per fortnight to meet a debt he has to Centrelink of $4000.  In terms of his other expenses he has normal living expenses.  He is paying off a mortgage.  He owns his own property.  He is paying the minimum amount that he can off that mortgage of $100 a week.  There are no other significant expenses that he outlined to me.  He has a relationship with a woman.  They do not live together but they spend a lot of time together.  She lives in town, as he describes it, and he lives on his property.  Finally, Ms Holtham suggests that there is evidence before me that his parents live on the property with him and Ms Holtham queries whether any rent is being paid.

8. Clearly, and accepting the concession by Ms Holtham that her client is in a superior financial position than the father, there is no basis there which would affect my finding that there are circumstances justifying an order for costs.  However those financial circumstances will need to be considered again in the context of what order I make.

9. In my view there are circumstances here that justify an order for costs and they are to be found in s 117(2A)(e) and (f).

10. Turning then to the order that I make.  Obviously I take into account the submissions that have been put to me.  Perhaps if I can highlight one matter that the father has suggested is highly relevant to this issue and that is, and reading between the lines and perhaps summarising what he said to me that one of the prime issues not in these proceedings but in the circumstances generally relate to the charges of assault.  As I mentioned he hotly defended those changes.  He has maintained that the mother has lied in relation to them and continues to lie in relation to them.  He says that he has been vindicated in that regard by the assault charges being withdrawn in February 2009.

11. Now as I attempted to explain to the father, that is all very well and I do not intend to challenge that or dispute that in anyway, the point though is that these proceedings are proceedings about the child, and as I have stressed, primarily about with whom the child should live.  Inevitably there have been delays in finalising the proceedings in this court because of the criminal charges, but there is no part of the application for costs before me which relies on that delay as being a delay caused by the father or for which he should be responsible.  The application for costs are costs in what I would call the normal running of a matter in this court and those costs are not surprising in anyway, and, to repeat, there is no suggestion that they have been increased by any delay caused by the criminal proceedings.  Thus that is not an issue that I need to take into account or have regard to.

12. However, reflecting for a moment on what the father’s position was.  He sought that the child live with him.  His case was that he was defending the criminal charges and he would be able to show ultimately that the mother was lying.  Now what I understood the father was putting to me was as a result of that he would then be able to convince this court that it would be in the best interests of the child to live with him.  The criminal proceedings concluded with the charges being withdrawn.  The father says he has established that the mother is lying yet the result of this case is not the father still pursuing the child living with him, it is that the child is to live with the mother.  However, that still does not mean that the criminal proceedings have any direct relevance to this application for costs.  It might have been different if there had been an actual hearing about it and I had made an order.  But that did not happen, and it is hypothetical. The situation was that ultimately in July 2009 the father consented to orders that the child live with the mother.  Now in my view he could have done that from day one, and as it turned out the result of the criminal proceedings did not affect in any way that order.

13. To repeat, the mother seeks an order that the father pay costs of $7500 and that is set out in the schedule which I have referred to and which is a schedule I am told, and I accept that without formally checking it is a schedule prepared on the basis of the Family Law Scale.  There is no costs agreement, and there are no indemnity costs sought, it is purely costs on the scale which is the basis of the application.

14. There are two issues which in my view impact upon the order that I should make.  There is no doubt in my mind that the amount sought is a reasonable amount in the circumstances and that the work identified in the schedule was done.  There has been no suggestion otherwise.  However the father’s financial position is highly relevant to what order I should make.  He is on a NewStart allowance, and his future is uncertain subject to this surgery.  He has expenses, and he has debts – in fact I omitted to mention one debt that he had and it is that he still owes $5000 to the solicitors who were instructed in the criminal proceedings.  Initially their costs were about $10,000, but he has paid off $5000 and there is $5000 to go.

15. Although the father is on a Centrelink pension and prima facie that does not give him much to play with in terms of available funds, he has been able to fund his criminal proceedings to the tune of paying $5000 and he recognises an obligation to continue to pay another $5000.  If the father can do that he can rearrange his finances so that he can meet the costs associated with this proceeding to which the mother is entitled and which will be the subject of my order shortly.

16. Having considered the submissions and the matter generally, I propose to allow the father 18 months to pay the total amount of $5000 on the basis of $2500 of that being paid within one year.

I certify that the preceding 54 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 11 August 2009.

Associate